Schmuck v. Dakota Southern Railway Co.

27 N.W.2d 245, 71 S.D. 540, 1947 S.D. LEXIS 38

• Court: South Dakota Supreme Court
• Decided: April 21, 1947
• Docket: File No. 8910.
• Status: Published

Opinion

PER CURIAM.

Plaintiff sought to appeal from an order vacating a default judgment as to defendant Ed Sampson and permitting him to answer. Respondent moved to dismiss the appeal on the ground that the order is not appealable. We recently sustained a motion to dismiss an appeal from such an order. Adamson v. Petersen, 68 S. D. 509, 4 N. W.2d 808.

The contention is made that if appellant cannot appeal as a matter of right, this court may within its discretion allow the appeal and appellant has now applied for such an allowance. SDC 33.0701 enumerates the orders which are appealable and in determining whether an appeal either as a matter of right or by leave of this court will lie from an order reference must be had to such statutory pro-visions. The question is one of appellate jurisdiction; in other words, if an order is not appealable, it is not within the jurisdiction of this court to entertain a petition for allowance and to determine the questions involved without awaiting the final determination of the action.

The appeal is therefore dismissed.

All the Judges concur, except POLLEY, J., not sitting.