Johnson v. Swanson

210 N.W. 662, 50 S.D. 448, 1926 S.D. LEXIS 400

• Court: South Dakota Supreme Court
• Decided: November 15, 1926
• Docket: File No. 5708
• Status: Published

Opinion

OATES, P. J.

This is an appeal by defendants from a judgment and order denying new trial; the judgment having granted a petition for the exclusion of certain territory from Plighmore independent school district and the formation of a common school district thereof.

It is urged by respondent that this is neither an action nor a special' proceeding and that an appeal to this court does not lie from the determination made by the trial court; that certiorari was the only remedy.

We are of the opinion that this is a special proceed-in'.; (State v. Kieffer, 45 S. D. 288, 187 N. W. 164; Kundert v. City of Madison, 39 S. D. 43, 162 N. W. 898) ; that the final order of the trial court was in effect a judgment; that appeal therefrom d-. es lie to this court as from a judgment (Rev. Code 1919, § 3145) ; and, therefore, that no authority for appeal need be sought under section 3168, which defines appealable orders.

All of the.questions argued by appellants are argued in practice lly the same language in No. 5683, Larsen v. Seneca, Ind. School Dist., 50 S. D. —, 210 N. W. 661, the opinion in which is handed down herewith.

For the reasons stated in the opinion in that case, the judgr'ent and order denying new trial in this case are affirmed.

DILLON, J., not sitting.