First National Bank v. McIlvaine

South Dakota Supreme Court

First National Bank v. McIlvaine

139 N.W. 596, 31 S.D. 37, 1913 S.D. LEXIS 97

DecidedJanuary 6, 1913

StatusPublished

This text of 139 N.W. 596 (First National Bank v. McIlvaine) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

First National Bank v. McIlvaine, 139 N.W. 596, 31 S.D. 37, 1913 S.D. LEXIS 97 (S.D. 1913).

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Opinion

HANEY, J.

On May 27, 1912, the plaintiff ■ recovered a judgment in this action against the' defendant for $2,599.24 and costs. All proceedings, except the -entry of judgment and taxation of -costs w-er-e stayed for 60 -days. Subsequently the plaintiff brought an action against the defendant and -Sara T. Mellvaine to have certain real property, the record title of which is in Sara T. Mellvaine, -subjected to the payment of th-e aforesaid judgment. Thereafter the defendant moved the court in this- -action for an order requiring the-plaintiff to- withdraw i-t-s-second a-ction on the ground that it was instituted in violation of -the order staying [40]*40proceedings in (this action. Upon the hearing of this motion, the court entered an order directing .the plaintiff Ito make a formal application to dismiss- its 'second -action and- discharge the lis- pendens filed therein within -two days, and providing -that, if the plaintiff failed to comply with such direction, «the court would, upon defendant’s motion., enter an order -dismissing such action and .-discharging the lis pendens. Plaintiff having- declined to withdraw its second action, -the defendant moved to dismiss, which motion was granted, and tire plaintiff -appealed. It also appealed from the -order made in -this, th-e firs-t action, directing it to dismiss' the second one. The defendant now moves to- dismiss such ap-peal for the reason that it involves no substantial right. .Such motion should be granted. ■ ■

The -order entered in this action, relating to the dismissal of the second action, in effect merely informed the parties that the •court would -sustain a.motion -to dismiss in -the second action. It, in effect, denied the relief 'sought by the defendant. An -order ■having 'been entered in -the -second- action dismissing th-e same, from which the plaintiff appealed, the ruling sought to be -reviewed by the plaintiff’s appeal in this action no longer affects any substantial right -of either party. The only material issue is whether the second action should have been dismissed; -such issue is presented-by the appeal in the second action. Neither -the reversal nor affirmance of the -order appealed from in this action could possibly affect the right of -the plaintiff to maintain its second -action.

Th-e plaintiff’s -appeal in this action is- dismissed.

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HANEY, J.

On May 27, 1912, the plaintiff ■ recovered a judgment in this action against the' defendant for $2,599.24 and costs. All proceedings, except the -entry of judgment and taxation of -costs w-er-e stayed for 60 -days. Subsequently the plaintiff brought an action against the defendant and -Sara T. Mellvaine to have certain real property, the record title of which is in Sara T. Mellvaine, -subjected to the payment of th-e aforesaid judgment. Thereafter the defendant moved the court in this- -action for an order requiring the-plaintiff to- withdraw i-t-s-second a-ction on the ground that it was instituted in violation of -the order staying [40]*40proceedings in (this action. Upon the hearing of this motion, the court entered an order directing .the plaintiff Ito make a formal application to dismiss- its 'second -action and- discharge the lis- pendens filed therein within -two days, and providing -that, if the plaintiff failed to comply with such direction, «the court would, upon defendant’s motion., enter an order -dismissing such action and .-discharging the lis pendens. Plaintiff having- declined to withdraw its second action, -the defendant moved to dismiss, which motion was granted, and tire plaintiff -appealed. It also appealed from the -order made in -this, th-e firs-t action, directing it to dismiss' the second one. The defendant now moves to- dismiss such ap-peal for the reason that it involves no substantial right. .Such motion should be granted. ■ ■

The -order entered in this action, relating to the dismissal of the second action, in effect merely informed the parties that the •court would -sustain a.motion -to dismiss in -the second action. It, in effect, denied the relief 'sought by the defendant. An -order ■having 'been entered in -the -second- action dismissing th-e same, from which the plaintiff appealed, the ruling sought to be -reviewed by the plaintiff’s appeal in this action no longer affects any substantial right -of either party. The only material issue is whether the second action should have been dismissed; -such issue is presented-by the appeal in the second action. Neither -the reversal nor affirmance of the -order appealed from in this action could possibly affect the right of -the plaintiff to maintain its second -action.

Th-e plaintiff’s -appeal in this action is- dismissed.

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Bluebook (online)

139 N.W. 596, 31 S.D. 37, 1913 S.D. LEXIS 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-v-mcilvaine-sd-1913.