Overton v. City of Sioux Falls

South Dakota Supreme Court

Overton v. City of Sioux Falls

196 N.W. 297, 47 S.D. 135, 1923 S.D. LEXIS 128

CourtSouth Dakota Supreme Court

DecidedDecember 21, 1923

DocketFile No. 5319

StatusPublished

Cited by4 cases

This text of 196 N.W. 297 (Overton v. City of Sioux Falls) 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

Overton v. City of Sioux Falls, 196 N.W. 297, 47 S.D. 135, 1923 S.D. LEXIS 128 (S.D. 1923).

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Opinion

DILLON, J.

The question presented to this court for review is an order for continuance imposing conditions. The order was made after the cause had been on trial for more than a day and at a time when the plaintiff had' examined many witnesses, some of whom came from, some distances to be in attendance at the trial. The application for continuance was made by the defendant on affidavits. The court granted the defendant the continuance by imposing conditions: “That the defendant pay to the plaintiff all taxable costs incurred in the action to the date hereof and the further sum' of $50 to defray plaintiff’s expenses of attorney’s fees before defendant is given the right to proceed in the trial of said cause.” ' The respondent insists that the statute does not authorize an appeal from such an intermediate order. We think respondent’s position is correct. The right of appeal is purely statutory.

Clearly, this order did not determine the action, nor did it prevent judgment from being taken. Rev. Code 1919, § 3168, subd. 1. It is simply an intermediate order made during the progress of the trial and ¡is not appealable.

It follows that this appeal must be dismissed. It is so. ordered.

Note. — Reported, in 196 N. W. 297. See, Headnote (1), American Key-Numbered Digest, Appeal and Error, Key-No. 1, 3 C. J. Sec. 29; (2) Appeal and error, Key-No. 93, 3 C. J. Sec. 295.

'On Rev. Code 1919, Sec. 3168, see annotations Kerr’s Cyc. Codes, 1920, Civ. Pro. Sec. 963.

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DILLON, J.

The question presented to this court for review is an order for continuance imposing conditions. The order was made after the cause had been on trial for more than a day and at a time when the plaintiff had' examined many witnesses, some of whom came from, some distances to be in attendance at the trial. The application for continuance was made by the defendant on affidavits. The court granted the defendant the continuance by imposing conditions: “That the defendant pay to the plaintiff all taxable costs incurred in the action to the date hereof and the further sum' of $50 to defray plaintiff’s expenses of attorney’s fees before defendant is given the right to proceed in the trial of said cause.” ' The respondent insists that the statute does not authorize an appeal from such an intermediate order. We think respondent’s position is correct. The right of appeal is purely statutory.

Clearly, this order did not determine the action, nor did it prevent judgment from being taken. Rev. Code 1919, § 3168, subd. 1. It is simply an intermediate order made during the progress of the trial and ¡is not appealable.

It follows that this appeal must be dismissed. It is so. ordered.

Note. — Reported, in 196 N. W. 297. See, Headnote (1), American Key-Numbered Digest, Appeal and Error, Key-No. 1, 3 C. J. Sec. 29; (2) Appeal and error, Key-No. 93, 3 C. J. Sec. 295.

'On Rev. Code 1919, Sec. 3168, see annotations Kerr’s Cyc. Codes, 1920, Civ. Pro. Sec. 963.

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196 N.W. 297, 47 S.D. 135, 1923 S.D. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/overton-v-city-of-sioux-falls-sd-1923.

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