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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
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.
318 Insurance Company of N.
Y. V. Basford, Insurance
149 Investment Company, Straub v. Lyman Land &
571 Issenhuth, Sawyer v.
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.
Gates et al., Loisseau V.
95 590 180 571 458 425
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.
581 234 571 329 227
408 Page Lumber Co. v. McMacken et
al., John Tuthill .... 507 Lunder et al. v. Brookings
& Sioux Falls Railway
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.
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
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-
37 McMackin et al., John W.
Tuthill Lumber Co. V. 507 McMahon, Geiger v.
95 Metropolitan Casualty Insur
ance Company of New
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 &
357 Railway Company, Murphy
V. Chicago M. & P. S. 475 Railway Company, State ex
rel. Rice v. Chicago M. &
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.,
547 Roberts County et al., Peterson v.
439 Rockwell, Fernyhough v.
75 Rossa, Kinkaid v.
559 Ryan, Watters v.
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
244 216 234
Newton v. McGee
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
424 Publishing Co. v.
483 State Auditor, State ex rel. Polley V. Anderson
Ward et al. v. Brown State v. Gregory 425
Ward, Howard v.
Warren et al., Kroeger v.
480 V. Kerkow
Watters V. Ryan State rel.
432 Wells, Sorg et al. v. ex
Western Surety Co. et al.,
175 State ex rel. Paulson' y. Van Dyke
47 State V. Perkins
Lamro Town Site Co.
Wheeler-Adams Auto State ex rel Polley V. And
American Nat'l. Bank v. 524 State ex rel. Pryor v.
Wickre et al.
623 ness et al.
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.
cial Club of
401 Lyman Land & Investment Co. 571
Wolf v. Gramm Sullivan v. Lyons
189 Surety Co. et al., Wilson v. Western
Yankton-Clay County Drain175
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.
ARGUED AND DETERMINED
Supreme Court of South Dakota
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
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.
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