In Re Babcock's Estate

263 N.W. 158, 64 S.D. 1, 1935 S.D. LEXIS 77

• Court: South Dakota Supreme Court
• Decided: November 18, 1935
• Docket: File Nos. 7796-7.
• Status: Published

Opinion

The respondent has moved to dismiss the appeal on the ground that the determination of the controversy, as made by the circuit court, was an order as distinguished from a judgment. The action of the circuit court was the result of a trial de novo in circuit court on an appeal from the county court on questions of both law and fact. This court in the case of Ryan v. Lundberg, 60 S.D. 74,243 N.W. 102, said: "When an appeal to the circuit court from the action of the county court is on questions of both law and fact, the trial is `de novo,' and the statute contemplates that the trial court will pronounce judgment."

We are of the opinion that the above-cited case controls our decision in this case, and it follows that the time limit in which to appeal from a judgment controls.

The appeal will not be dismissed.

All the Judges concur.