Landstad v. McClellan

173 N.W. 747, 42 S.D. 263, 1919 S.D. LEXIS 113

• Court: South Dakota Supreme Court
• Decided: August 15, 1919
• Docket: File No. 4565
• Status: Published

Opinions

WHITING, J.

Appellant seeks to take.an appeal from an order denying a new trial. After service of a notice of, and bond on, appeal, appellant moves this court for an. order to allow him to use, upon this appeal, the printed. briefs filed on a former appeal in this cause. Respondents resist the motion upon the ground that the present appeal is abortive, because taken after the time fixed by statute within which an appeal from an order may be taken. An appeal from an order must be taken within 6o days after service of written notice of the filing of such order (section 3147, Rev. Code 1919.) The purported notice of and bond on appeal were not served within such 60-day period, but were served within double such period, and appellant contends-that, inasmuch as the notice of the order sought to be appealed from' was served on him- by mail, his appeal is within time because of section 2585, Rev. 'Code 1919. This section reads:

“Double Time Allozved for Service by Mail. — When the service is by mail, it shall be double the time required in cases of . personal service, except service of notice of trial, which may be made sixteen days before the day of trial, including the day of service.”

Appellant contends that this statute has the effect of doubling" the time within which am appeal from an order may be taken whenever notice of the entry of such order has been given by mail. Such is the effect of the holdings in New York and North Dakota. Dorlon v. Lewis, 7 How. Prac. (N. Y.) 132; More v. Western Grain Co., 31 N. D. 369, 153 N. W. 976.

[1,2] The holdings in the above cases in effect construe such statute as though the word' “be” was omitted from before the word “double.” We think the language too plain to admit of any such construction. We are of the opinion that this statute applies where the party giving the notice, by such notice, seeks to-fix the date for the doing of something at a certain time in the future, and was not intended to- have any application to a notice of a past event, even though it might happen that the giving of such notice started the running of a statute of limitations against the party receiving same. We are loth to believe that any Legislature would intentionally do such a ridiculous thing as to double the 60-day period for taking appeals merely because the notice of' the filing of an order was given by mail, or to double the time for answering a pleading merely because the pleading was served' by mail. If such was the intent of the Legislature it would have-made it plain by some such language as that found in section 1013, Code Civ. Proc. of California:

“If, within a given number of clays after such service, a right may be exercised, or an act is to be done by the adverse party, the time within which such right may be exercised or act be done is extended one day for every twenty-five miles distance between the place of deposit and the place of address. * * *”

The motion of appellant is denied, and, as it appears clearly that the time for appeal had expired, the purported appeal is stricken from the records of this court.