Bank of Iowa & Dakota v. Oliver

78 N.W. 1002, 11 S.D. 444, 1899 S.D. LEXIS 38

Opinion

Haney, J.

Appellant applies, upon notice, to amend his abstract by adding thereto an order of the circuit court, denying his motion for a new trial, made August 9, 1898. The appeal was taken September 18, 1898. Appellant’s application is supported by the affidavit of his attorney, from which it appears that the order denying a new trial was entered after this appeal was taken, by order of the circuit court, as of a date prior to the taking of the appeal.

It is held in the case of Martin v. Smith, decided at this term, 11 S. D. 437, 78 N. W. 1001, that no appeal lies until the judgment or order has been entered as a permanent record of the court below; that the rights of the parties in respect to an appeal are determined by the date of the actual entry of the judgment or order, and cannot be affected by the entry thereof, nunc pro tunc, as of a prior date; and that this rule is not modified by Comp. Laws, § 5235. Upon the authorities cited, and for the reasons stated in that case, it yrould be idle for appellant to amend his abstract, by printing this notice of appeal, as his application shows it cannot be reviewed upon this appeal. The application to amend is denied.