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Page Dakota Nat'l. Bank V. Kleinschmidt

35 Davis v. C. & J. Michel Brewing Co.

284 Ditch, In re Yankton-Clay

County Drainage. Fargo

et al. v. Aasetth et al. 496 Dorwart et al. Coffee v. 102 Drainage Ditch, In re Yank

ton-Clay County. Fargo

et al. v. Aaseth et al. .. 496 Dring, Administrator, v. St. Lawrence Township

of Hand County

197

Page Implement Co. Lee v. Clark 581 Independence Township et al., Wickre et al. v.

623 Independent Publishing Co. v. Stanley County

483 In re Estate of John McClellan

641 In re Yankton-Clay Coun

ty Drainage Ditch. Fargo

et al. v. Aaseth et al. 496 Insurance Company, Black

Hills Brewing Company v.
Middle West Fire

318 Insurance Company of N.

Y. V. Basford, Insurance
Commissioner, Metropoli-
tan Casualty

149 Investment Company, Straub v. Lyman Land &

571 Issenhuth, Sawyer v.

502

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Fargo et al. V. Aaseth et al.

In re Yankton-Clay Coun

tyt Drainage Ditch Fernyhough v. Rockwell Fidler et al., Barbour et al.

V. Field et al., Carlberg v. Filbert, National Cable &

Manufacturing Co. V. First Nat'l. Bank of Fred

eric Wisconsin V. McIl

vaine Frahm et al., Carter et al.

V.

351 209

491 69

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Gates et al., Loisseau V.
Geiger v. McMahon
Gleason, Castle v.
Gotthelf, McEwen V.
Gould et al., Block v.
Gramm, Wolf v.
Gregory, State V.
Gullikson et al. v. Bovee et

al.

227

95 590 180 571 458 425

47 109

496

211

571

Lamro Town Site Company,

Western Town Site Com

pany v. Lanam et ux., Clark v. Land Company V. Brustuen,

Minder and Jorgenson Land & Investment Com

pany, Straub v. Lyman Larson v. C. M. & St. P.

Ry. Co. Lee et al. v. Clark Imple

ment Co., et al. Lee, Niles V. Lehman et al., Block v. Loeb, Hilliard v. Loisseau v. Gates et al. Loomis, Trustee, C. &

N. W. Ry. Co.

Hallam V. Henkin

637 Hand County, Dring v.

St. Lawrence Township of 197 Helgerson, Sanford et al. v. 472 Hendrickson et al., Allen v. 376 Henkin, Hallam V.

637 Henry et al., Cooper v. 369 Hilliard v. Loeb

329 Howard v. Ward

114 Huntimer v. S. D. C. Railway Co.

487

512

581 234 571 329 227

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408 Page Lumber Co. v. McMacken et

al., John Tuthill .... 507 Lunder et al. v. Brookings

& Sioux Falls Railway
Co.

357 Lyman Land & Investment Co., Straub v.

571 Lynn V. Commercial Club of Witten et al.

401 Lyons et al., Sullivan v. 189 Lyons, Thomas Manufacturing Co. v.

500

Page Pense et al., Bebout v. 619 Perkins, State v.

447 Peterson, Alsager V.

452 Peterson v. Roberts County et al.

439 Polley V. Anderson, State

Auditor, State ex rel. 261 Pryor v. Axness et al., State ex rel.

125 Publishing Company v. Stan

ley County, Independent.. 483

v.

Manufacturing Co., Lyons et al. v. Thomas

500 Manufacturing Co. Fil

bert, National Cable & 244 Margeson, Bergman v.

1 McClellan, John, In

re Estate of

641 McEwen v. Gotthelf

180 McGee, Newton v.

216 McIlvaine, First National

Bank of Frederic Wiscon-
sin v.

37 McMackin et al., John W.

Tuthill Lumber Co. V. 507 McMahon, Geiger v.

95 Metropolitan Casualty Insur

ance Company of New
York v. Basford, Insur-
ance Commissioner

149 Michel Brewing Company, Davis v. C. & J.

284 Middle West Fire Insurance

Company, Black Hills

Brewing Company V. 318 Miller, Brewster V.

613 Miller v. Miller, City of 105 Millerke v. Reiley, Sheriff, et al.

342 Minder & Jorgenson Land

Company V. Brustuen 211 Mining & Milling Company,

Crocker v. Cumberland 137 Murphy v. Chicago M. & P.

S. Railway Company 475

Railway Company, Baum- ·

berger v. S. D. Central .. 491 Railway Company, Larson

v. Chicago, M. & St. P. . 512 Railway Company, Huntimer V. S. D. Central

487 Railway Company, Loomis,

Trustee, v. C. & N. W. , 408 Railway Company, Lunden

et al. V. Brookings &
Sioux Falls

357 Railway Company, Murphy

V. Chicago M. & P. S. 475 Railway Company, State ex

rel. Rice v. Chicago M. &
St. P.

547 Railway Company, Yeager v. S. 'D. Central

304 Reed v. Boland

309 Reed, Carlson v.

279 Reily, Sheriff et al., Millerke v.

342 Reeves & Co. v. Block et al. 60 Rice et al. v. Chicago, M.

& St. P. Railway Co.,
State ex rel.

547 Roberts County et al., Peterson v.

439 Rockwell, Fernyhough v.

75 Rossa, Kinkaid v.

559 Ryan, Watters v.

536

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St. Lawrence Township of

Hand County, Dring v. 197 Sanford et al. v. Helgerson 472 Sawyer v. Issenhuth

502 Schmidt et al. v. Jutting 69 Sether, Callan v.

80 Sheriff et al., Millerke V. Reily

342 Sioux Falls Savings Bank, Allen V.

376 Smith & Co. M. E., v. Kimble

18

bert

244 216 234

Newton v. McGee
Niles v. Lee
Paulson v. VanDyke, State

ex rel.

424

V.

Page

Page Smith v. Bowder 607 Todd v. Burger et al.

622 Sorg et al. v. Wells

432 Town Site Co. Lamro South Dakota Cent. Ry, Co.,

Town Site Co., Western.. 47 Baumberger v.

491 Tuthill Lumber Co. v. McSouth Dakota Cent. Ry. Co.,

Mackin et al., John W. 507 Huntimer V.

487 South Dakota Cent. Ry. Co., Yeager V.

304 Van Dyke, State ex rel. PaulStanley County, Independent

son V.

424 Publishing Co. v.

483 State Auditor, State ex rel. Polley V. Anderson

296 261

Ward et al. v. Brown State v. Gregory 425

114

Ward, Howard v.
State
rel.

Warren et al., Kroeger v.
ex
Jackson

480 V. Kerkow

536 425

Watters V. Ryan State rel.

432 Wells, Sorg et al. v. ex

Jackson v.
Kerkow, City Auditor 491

Western Surety Co. et al.,
Wilson V.

175 State ex rel. Paulson' y. Van Dyke

V.
424
Western Town Site Co.

47 State V. Perkins

447

Lamro Town Site Co.

Wheeler-Adams Auto State ex rel Polley V. And

Co., erson

261

American Nat'l. Bank v. 524 State ex rel. Pryor v.

Wickre et al.
Ax-

v. Independ

623 ness et al.

125

ence Twp. et al. State ex rel. Rice et al. v.

Wilson v. Western Surety

175 C. M. & St. P. Ry. Co. 547

Co. et al.
Stemler v. Stemler

V.
Witten, Lynn
595.

Commer-
Straub v.

cial Club of

401 Lyman Land & Investment Co. 571

458

Wolf v. Gramm Sullivan v. Lyons

189 Surety Co. et al., Wilson v. Western

Yankton-Clay County Drain175

re

age Ditch, In Fargo Thomas Mfg. Co. v. Lyons

et al. V. Aaseth et al. .. 496

Yeager V. South Dakota et al. 500 Cent. Ry. Co.

304

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CASES

ARGUED AND DETERMINED

IN THE

Supreme Court of South Dakota

2.

BERGMAN, Respondent, v. MARGESON, Appellant.

(139 N. W. 374.) 1. Justice's Court-Appeal-Filing Within Statutory Time-Waiver.

Failure of justice of the peace to file the appeal transcript within fifteen days from time of perfecting appeal, as provided in Sec. 106, Justice's Code, is not jurisdictional, and right to

dismiss the appeal on that ground may be waived. Appeal-Failure to File Appeal—Waiver-Decisions of Inter

mediate Court.

Where respondent goes to trial in circuit court, on an appeal from justice's court, without timely motion to dismiss appeal for defendant's failure to file appeal within statutory time, he waives right to dismissal on that grouna, and, as the statute confers upon appellant no right to object in circuit court for failure of a justice to transmit the record, files and transcript, no question arising under Sec. 106. Justice's Code, is presented for review on appeal from a judgment of circuit court dismiss

ing the appeal to that court. 3. Justice's Court-Pleadings—Record-Appeal-Presumptions.

Under Justice's Code, Secs. 18, 93, 94, defining requisites of pleadings in justice's court and concerning what the docket must contain, and the docket entries as evidence, 'the court, where the docket is silent as to the pleadings and contains no recitals or filing of any plead ngs, can only assume that the case was tried in justice's court without pleadings and was submitted on issues raised by the evidence, and that, on the evidence and issues thus presented, the justice entered the judg

ment disclosed in the transcript. Same-Appeal-Leave to File Pleading_Objection to Evidence.

Where the record on appeal from justice's court is silent as to, and contains no recital of the filing of, any pleadings, and

does not purport to contain the substance of any oral pleadings, 1_Vol. 31, S. D.

4.

or

the circuit court, on objection, by defendant appealing, to the introduction of evidence because no pleadings are before the court, and no complaint or issue upon which the evidence offered may be received, may permit plaintiff to file a com

plaint, and defendant to file his answer. 5. Justice's Court-Appeal-Dismissal of Appeal For Want of

Pleadings—Dismissal of Action.

The circuit court, on appeal from justice's court, may not dismiss the appeal because of absence of pleadings, oral written, but may dismiss the action for want of issues to be tried, unless the parties ask leave to file pleadings, which leave may be granted.

(Opinion filed January 6, 1913.) Appeal from Circuit Court, Lyman County. Hon. WILLIAM WILLIAMSON, Judge.

Action by Henry Bergman against Frank Margeson, for damages for cutting hay. From a judgment of the circuit court dismissing an appeal from justice's court, defendant appeals. Reversed and remanded.

Bartine & Bartine, Frank C. Wederath, and Lloyd E. Waggoner, for Appellant.

The appeal brought the case before the court for a trial, and no complaint appearing and no chance to demur or plead that another action was pending between the same parties for the same subject matter, this question was properly raised by defendant's objection to any evidence. See pages 1 and 2 of transcript.

The defendant cannot be said to have waived his right to make this objection by section 125 Code of Civil Procedure, as the time to thus object depended on what pleadings the plaintiff might offer.

The plaintiff having failed to ask leave to supply the complaint, the defendant had no other means of bringing that question before the court.

In South Dakota it is the settled law of the state that the notice and undertaking on appeal from the Justice Court gives the Circuit Court jurisdiction and the appeal cannot be dismissed because of the failure of the justice to transmit the full record on appeal. McLaughlin v. Michel, et al., 14 S. D., 189.

In order that the Circuit Court may summarily dismiss the appeal there must be an utter lack of jurisdiction. But in the case at bar, jurisdiction having been obtained as repeatedly held

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