Opinion
File Nos. 7796-7.
Opinion filed November 18, 1935.
Appeal and Error.
Time limit within which to appeal from judgment held to control appeal from action of circuit court in trial de novo in circuit court on appeal from county court on questions of both law and fact.
Appeal from Circuit Court, Codington County; HON.W.N. SKINNER, Judge.
Proceeding in the matter of the estate of Walter E. Babcock, deceased. From a decision of the circuit court, an appeal was taken wherein a motion was made to dismiss the appeal.
Motion was denied.
Louck Wohlheter, of Watertown, for Appellant.
Walter Stover, of Watertown, and George W. Prichard, of Onawa, Iowa, for Respondent.
The respondent has moved to dismiss the appeal on the ground that the determination of the controversy, as made by the circuit court, was an order as distinguished from a judgment. The action of the circuit court was the result of a trial de novo in circuit court on an appeal from the county court on questions of both law and fact. This court in the case of Ryan v. Lundberg, 60 S.D. 74, 243 N.W. 102, said: "When an appeal to the circuit court from the action of the county court is on questions of both law and fact, the trial is `de novo,' and the statute contemplates that the trial court will pronounce judgment."
We are of the opinion that the above-cited case controls our decision in this case, and it follows that the time limit in which to appeal from a judgment controls.
The appeal will not be dismissed.
All the Judges concur.