Hawkins v. Lasell

South Dakota Supreme Court

Hawkins v. Lasell

178 N.W. 731, 43 S.D. 191, 1920 S.D. LEXIS 77

CourtSouth Dakota Supreme Court

DecidedJuly 15, 1920

DocketFile No. 4643

StatusPublished

This text of 178 N.W. 731 (Hawkins v. Lasell) 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

Hawkins v. Lasell, 178 N.W. 731, 43 S.D. 191, 1920 S.D. LEXIS 77 (S.D. 1920).

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Opinion

WHITING, J.

Purported appeal from an order overruling a demurrer to amended complaint. Respondent moves the dismissal of the attempted appeal upon the ground that there was no such order as the one described in the notice of appeal.

[1, 2] The defendants named in the title to this action, as the same appears on all papers, are “Silas T. Lasell, S. T. -Lasell doing business as Waubay Motor Sales Company, and Waubay Motor Sales -Company, a corporation.” It is evident that “Silas T. Lasell” and “'S. T. Lasell” are the names of but one man. A demurrer -was interposed by the defendant corporation. There is a -dispute as to whether defendant Lasell interposed a demurrer; but, if so, it was a separate one from the one interposed by the corporation, and was interposed in name of “Silas T. Lasell.” [193]*193The order overruling the demurrer refers only to the demurrer interposed by the corporation. If, as now claimed, there were demurrers interposed both on behalf of the corporation and La-sell, and it was the intent of the trial court that its order be one overruling both such demurrers, defendant Lasell should have asked the trial court to correct its written order, so that it might express the real intent of such court. This court must treat the order as one overruling the demurrer of the corporation only.

The notice of appeal was given in the name of the corporation and “S. T. Lasell,” and it recites that “the defendants hereby jointly appeal * * * from the order * * * wherein the court overruled the demurrer interposed by these defendants.” As stated above, if both defendants demurred, it was by separate demurrers. The undertaking on appeal recites that the order was one “overruling demurrer.” We do not deem the notice and undertaking sufficient to give this court jurisdiction of an appeal from the order actually entered.

The appeal is therefore dismissed. ¡

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WHITING, J.

Purported appeal from an order overruling a demurrer to amended complaint. Respondent moves the dismissal of the attempted appeal upon the ground that there was no such order as the one described in the notice of appeal.

[1, 2] The defendants named in the title to this action, as the same appears on all papers, are “Silas T. Lasell, S. T. -Lasell doing business as Waubay Motor Sales Company, and Waubay Motor Sales -Company, a corporation.” It is evident that “Silas T. Lasell” and “'S. T. Lasell” are the names of but one man. A demurrer -was interposed by the defendant corporation. There is a -dispute as to whether defendant Lasell interposed a demurrer; but, if so, it was a separate one from the one interposed by the corporation, and was interposed in name of “Silas T. Lasell.” [193]*193The order overruling the demurrer refers only to the demurrer interposed by the corporation. If, as now claimed, there were demurrers interposed both on behalf of the corporation and La-sell, and it was the intent of the trial court that its order be one overruling both such demurrers, defendant Lasell should have asked the trial court to correct its written order, so that it might express the real intent of such court. This court must treat the order as one overruling the demurrer of the corporation only.

The notice of appeal was given in the name of the corporation and “S. T. Lasell,” and it recites that “the defendants hereby jointly appeal * * * from the order * * * wherein the court overruled the demurrer interposed by these defendants.” As stated above, if both defendants demurred, it was by separate demurrers. The undertaking on appeal recites that the order was one “overruling demurrer.” We do not deem the notice and undertaking sufficient to give this court jurisdiction of an appeal from the order actually entered.

The appeal is therefore dismissed. ¡

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Bluebook (online)

178 N.W. 731, 43 S.D. 191, 1920 S.D. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawkins-v-lasell-sd-1920.