Paper Supply Co. v. MacDonald

182 N.W. 526, 44 S.D. 100, 1921 S.D. LEXIS 47

Opinion

WHITING, J.

This matter is in this court upon an appeal from1 an order setting aside a default and permitting defendant to answer and defend. No judgment has been entered. Respondent moves to dismiss the appeal on the ground that the order, sought to be appealed from, is not appealable. Section 3:168, Rev. Code, enumerates the orders that are reviewable by this court, and, by enumerating such orders as may be reviewed, it necessarily excludes all those not so enumerated.

We fail to find anything in section 3168 that authorizes this appeal. Certainly there is no provision of such section that could be thought to warrant such appeal, other than subdivision 2 of such section, which authorizes an appeal from—

“a final order affecting a substantial right, miade in a special proceeding or upon a summary application in an action after judgment.”

The order before us was not a “final order” (Ledebuhr v. Grand Grove, etc., 97 Wis. 341, 72 N. W. 884; Port Huron E. & T. Co. v. Rude, 101 Wis. 324, 77 N. W. 177), and certainly it was not made “after judgment.” In Weber v. Tschetter, 1 S. D. 205, 46 N. W. 201, this court apparently overlooked the fact that the order before it was not “a final order.” It will be noted that the order before us is one granting leave to answer, and not one denying such privilege.

The appeal is dismissed.

McCOY, J., not sitting.