Duba v. Mellette County

289 N.W. 417, 67 S.D. 90, 1939 S.D. LEXIS 87

• Court: South Dakota Supreme Court
• Decided: December 26, 1939
• Docket: File No. 8268.
• Status: Published

Opinion

This action was commenced on November 2, 1937, and judgment by default was entered therein on March 7, 1938. Defendant made application for an order to show cause why the judgment entered should not be vacated and set aside. The order was granted and made returnable on December 1, 1938, at which time the trial court ordered that the judgment be vacated and set aside and that defendant be given permission to answer. On February 10, 1939, plaintiff perfected an appeal to this court from this order.

The order was not appealable. Section 3168, Rev. Code 1919, enumerated the orders which were appealable and the order here involved did not come within those enumerated. Paper Supply Co. v. Mac Donald, 44 S.D. 100, 182 N.W. 526; Moore v. Hahn, 65 S.D. 284,273 N.W. 377.

This court is therefore without jurisdiction to consider the merits of the order and the appeal must therefore be dismissed. It is so ordered.

WARREN, P.J., and ROBERTS, RUDOLPH, and SMITH, JJ., concur.

POLLEY, J., not sitting.