Cassidy v. Myers

264 N.W. 906, 64 S.D. 123, 1936 S.D. LEXIS 13

• Court: South Dakota Supreme Court
• Decided: February 5, 1936
• Docket: File No. 7838.
• Status: Published

Opinion

Within ten days after notice of appeal in this cause, respondents duly excepted to the sufficiency of the sureties upon the undertaking on appeal. Appellant thereupon gave notice that said sureties would appear and justify before the clerk of the circuit court of Moody County at a stated day and hour. Neither they nor other sureties appeared or justified at the time and place fixed or at all, nor was any new undertaking furnished. Upon a showing of those facts and pursuant to order to show cause, respondents have moved in this court for the dismissal of the appeal.

Under the circumstances, the appeal must "be regarded as if no undertaking had been given." Section 3164, R.C. 1919. The motion to dismiss must therefore be, and it is, granted.

All the judges concur, excepting Warren, J., disqualified and not sitting.