Agnew v. Agnew

219 N.W. 893, 52 S.D. 614, 1928 S.D. LEXIS 245

Opinion

MlISER, C.

This appeal is from the same judgment and order which were reversed in an opinion handed down at this term and reported in 52 S. D. 472, 218 N. W. 633. That appeal was taken by the defendant administrator. This appeal was taken by the defendants, who, if the claims of plaintiff and her children be rejected, would be the heirs at law of decedent. The motion to dismiss the appeal of the defendant heirs at law is not based upon the mere fact that the new trial must, by the disposition of the administrator’s appeal, be had in any event, but presents questions of Appellate procedure of considerable difficulty. It is nevertheless true that, as a result of the disposition made of the administrator’s appeal, about the only practical effect of adjudicating the rather intricate questions raised by the motion to dismiss would be to fix liability for costs. Under these circumstances, we do not feel justifiéd in taking the time necessary to investigate and determine the questions presented, although the appeal has not in a strict sense become moot; and the appeal is therefore dismissed. No costs will be taxed.

BURCH, P. J., and POLLEY, SHERWOOD, CAMPBELL, and BROWN, JJ., concur.