Brumwell v. Ede

152 N.W. 108, 35 S.D. 293, 1915 S.D. LEXIS 44

• Court: South Dakota Supreme Court
• Decided: April 6, 1915
• Docket: File No. 3663
• Status: Published

Opinion

PER CURIAM.

Plaintiff obtained a 'default judgment against defendant in justice’s court. The docket of the justice contains the following:

“October 11, 1913, defendant announced that he consents to the entry of a default judgment. It is hereby and now adjudged and ordered that plaintiff have judgment against him,” etc.

Thereafter defendant appealed from such judgment to the circuit court. In the circuit court defendant, by leave of court, served and filed an answer pleading payment, and also a counterclaim, to which plaintiff made reply. There was tidal which resulted in a verdict for defendant upon all the issues.

[1] Plaintiff, the appellant, now -for the first time raises in this court the question that the circuit court erred' in entertaining said appeal, for the reason that it did not have jurisdiction; the ‘defendant having in justice’s court confessed or consented to the judgment. We are of the view that it was not a jurisdictional question, and cannot be raised for the first time in this court.

[2] No other assignments of error will be considered, for the reason that there has been no sufficient attempt to condense the testimony, or to eliminate immaterial matter. Much of the testimony is in the form of questions and answers. What was said in Morse v. Stanley County, 26 S. D. 313, 128 N. W. 153, Rogers v. Penohoscot Mining Co., 26 S. D. 52, 127 N. W. 471, Whaley v. Vidal et al., 26 S. D. 300, 128 N. W. 331, applies more strongly to appellant’s record in this case.

The judgment and order appealed from are affirmed.