Anderson v. Bruflat

165 N.W. 538, 39 S.D. 555, 1917 S.D. LEXIS 191

• Court: South Dakota Supreme Court
• Decided: December 13, 1917
• Docket: File No. 4298
• Status: Published

Opinion

• WHITINlG, J.

[1] Defendant appealed from a judgment granting a peremptory w-rit of mandamus. Rule 6 of this court (29 S. D. 4, Rules, 140 N. W. viii) requires an appellant to- serve and file his brief upon appeal within 30 days after notice of appeal, except in those cases where a settled record has not been completed at time of notice of appeal, and, in those cases, within 30 days after completion of such record. Rule 24 (29 S. D. 14, Rules, 140 N. W. xii) provides that a failure to comply with the requirements o>f the rules of this court will, within the discretion of the court, be cause for the dismissal of the appeal, or affirmance of judgment. Relying upon- such -rules, respondent moves the dismissal of this appeal. It is undisputed that more than 30 days -have elapsed since notice of appeal, ¡but that 30 days have not elapsed since the settling of a record under chapter 178, Laws 1913. Respondent discloses that there was no motion for new trial, and1 that the 'evidence submitted was in the form of affidavit. He contends that under those circumstances there cannot properly.be a settled record — that the only proper record, upon which to ¡determine such questions as can be raised on this appeal, is the judgment roll.

The hearing had upon the return of an- alternative writ of mandamus, or upon the return day of a motion for a peremptory writ, is a trial of issues of fact. The record made upon such a trial does not become any part of the judgment roll under section 3x9, C. C. P., until the same is in some manner settled. In case of an order granted upon affidavits or other written evidence, the record as to such order may be settled under rule 5 of the Trial Courts (22 ¡S. D. 1, Rules of Practice in Courts of Record Other Than the Supreme Court). The only other methods known to our practice for settling a record upon a trial of issues of fact are those provided by chapter 178, Laws 1913. It may be that, where there is no motion for- new trial, an appellant cannot, upon appeal, question the sufficiency of the evidence to support the finding's of the trial court; nevertheless there may have been rulings occurring at a trial to which a party may have saved exceptions and upon which he may desire to specify and assign errors.

[2] An affidavit of a respondent detailing what he claims to be a true report of the proceedings at the trial, even though,-as in this case, it purports to set forth the stenographer’s transcript of the proceedings at such trial, cannot take the place of the proper record containing specifications of errors and duly settled by the trial court.

The motion to- dismiss is denied.