This case was before this court on a prior appeal. See same title, 60 S.D. 337, 244 N.W. 369. On the prior appeal the judgment entered in favor of the defendants was reversed. Thereafter, on the 8th day of December, 1932, the trial court entered judgment in favor of the plaintiff. On the 24th day of January, 1933, the defendants served notice of appeal from the judgment together with an undertaking or a cost and supersedeas bond. On the 25th day of January, 1933, the plaintiff and respondent served a notice of exception to the sufficiency of the sureties on the bond and demanded that they justify as required by law. Section 3164, Rev. Code 1919. On the 28th day of January, 1933, the defendants and appellants served notice on respondent that the sureties would justify before the clerk of courts of Minnehaha county on the 4th day of February, 1933. The sureties failed to justify and nothing further was done in the matter until the 14th day of February, 1933, when there was served upon respondent's attorneys a purported bond signed only by one surety. Respondent has made a motion to dismiss the appeal.
From the foregoing statement it seems too clear for argument that the appellant has never perfected an appeal and has not succeeded in conferring any jurisdiction upon this court to proceed therewith. The case of Carlton v. Saville, 51 S.D. 282, 213 N.W.. 509, is controlling.
The motion of respondent to dismiss the appeal is granted. An order of dismissal will be entered..
RUDOLPH, P.J., and POLLEY, CAMPBELL, ROBERTS, and WARREN, JJ., concur.