Hackett v. Gunderson

47 N.W. 546, 1 S.D. 479, 1891 S.D. LEXIS 50

• Court: South Dakota Supreme Court
• Decided: January 10, 1891
• Status: Published

Opinion

Kellam, J.

This case was originally tried in the district court for , Jerauld county, resulting in a verdict for plaintiff. Defendant moved to set aside the verdict on the ground of the insufficiency of the evidence, and for a new trial. This motion •was denied by the court, February 23, 1889, Hon. Bartlett Tripp, Judge. Afterwards, defendant moved the circuit court, as the successor of said district court, no judgment having been, entered on said verdict, as appears by the record, to set aside said verdict, and for a new trial on the ground of newly discovered evidence, which motion was also denied by said circuit court on the 19th day of January, 1890. Hon. D. Haney, Judge. This appeal is from both of said orders. Respondent moves to dismiss the same on the ground of duplicity, that each of said orders being the subject of an independent appeal, they cannot be thus combined and brought up for review upon a single appeal. If this appeal had been after judgment, and from the judgment, no doubt either or both of these orders might have been brought up for review on such appeal. Being made before judgment, they would be reviewable on appeal from the judgment as intermediate orders involving the merits and necessarily affecting the judgment, (Section 5237, Comp. Laws,) but the orders themselves, each being the subject, under our statute, of a separate apj eal, cannot be thus united and made the subject, before judgment, of one appeal. This rule appears to be well established in Wisconsin, from which state our statute on appeals is taken. Sewing Machine Co. v. Gurnee. 38 Wis. 533; Ballou v. Railroad Co., 53 Wis. 150, 10 N. W. Rep. 87. The appeal is dismissed.

All the judges concurring.