Reed v. Heath

8 Citing cases

  1. Baltodano v. North Cent. Health Services

    508 N.W.2d 892 (S.D. 1993)   Cited 24 times
    In Baltodano, there was no transcript of the trial court proceedings contained in the record and the appellant was attempting to present his version of the facts through a statement of proceedings permitted when a transcript is "unavailable."

    "Failure to timely order a transcript constitutes a waiver of the right to a transcript." SDCL 15-26A-49; Reed v. Heath, 383 N.W.2d 873, 874 (S.D. 1986). Where an appellant waives the right to a transcript by failing to order it, the only review which can take place "is a review of that portion of the record which was before the circuit court."

  2. Holmoe v. Reuss

    403 N.W.2d 30 (S.D. 1987)   Cited 18 times
    Reversing circuit court's denial of defendant's motion to dismiss where period of inactivity lasted three years, eleven months

    Id. See, e.g., Greyhound Corp. v. Estevez, 360 So.2d 41 (Fla.Dist.Ct.App. 1978); Shields v. Moore, 352 So.2d 139 (Fla.Dist.Ct.App. 1977); Palatka Housing Authority v. Betts, 349 So.2d 784 (Fla.Dist.Ct.App. 1977); Metropolitan Transit Authority v. Porter, 328 So.2d 573 (Fla.Dist.Ct.App. 1976). Two recent South Dakota cases, Duncan, supra, and Reed et al. v. Heath et al., 383 N.W.2d 873 (S.D. 1986), support defendant's position in this matter. When the motion to dismiss was made in Duncan, more than eight years had passed since the action was initiated, and more than five years had elapsed since all the information for trial was available.

  3. Jenco v. the United Fire Group

    666 N.W.2d 763 (S.D. 2003)   Cited 5 times
    Noting the notions of fundamental fairness prevent raising the statute of limitations over other considerations in determining whether a case should be dismissed under SDCL 15-6-41(b) or SDCL 15-11-11

    Our cases have found the following were insufficient evidence of good cause: communication among a plaintiff and plaintiff's counsel, but not with opposing counsel, Holmoe, 403 N.W.2d at 32; letters and settlement activity between the parties two years prior to dismissal, Id; massive amount of documentation and investigation, Dakota Cheese, 525 N.W.2d at 716; plaintiff's failure to file a summons and complaint in circuit court fourteen months after being instructed to do so by the transferring small claims court, Devitt, 551 N.W.2d 298; the serious nature of injuries to plaintiff, Annett v. American Honda Motor Co., Inc., 548 N.W.2d 798, 804 (S.D. 1995); difficulty in finding an expert witness and settlement activity which expired a year prior to dismissal, Id; and illness and death of defendants' original counsel and further inaction by defendants' counsel's law firm, Reed v. Heath, 383 N.W.2d 873, 874 (SD1986). Swenson v. Sanborn County Farmers Union Oil Co., 1999 SD 61, ¶ 16, 594 N.W.2d 339, 344. Jenco has failed to show good cause for its delay and therefore fails to show that the trial court abused its discretion by dismissing under SDCL 15-11-11 for failure to prosecute.

  4. Swenson v. Sanborn County Farmers Un. Oil Co.

    1999 S.D. 39 (S.D. 1999)   Cited 5 times

    ing party and some form of excusable conduct or happening which arises other than by negligence or inattention to pleading deadlines," Id. (citing Holmoe, 403 N.W.2d at 23). [¶ 16] We have found the following to not be good cause for delay: communication among a plaintiff and plaintiff's counsel, but not with opposing counsel, Holmoe, 403 N.W.2d at 32; letters and settlement activity between the parties two years prior to dismissal, Id; massive amount of documentation and investigation, Dakota Cheese, 525 N.W.2d at 716; plaintiff's failure to file a summons and complaint in circuit court fourteen months after being instructed to do so by the transferring small claims court, Devitt, 551 N.W.2d 298; the serious nature of injuries to plaintiff, Annett, 548 N.W.2d at 804; difficulty in finding an expert witness and settlement activity which expired a year prior to dismissal, Id; and illness and death of defendants' original counsel and further inaction by defendants' counsel's law firm, Reed v. Heath, 383 N.W.2d 873, 874 (SD 1986). [¶ 17] The mere passage of time is not the test to determine if an action should be dismissed.

  5. Devitt v. Hayes

    1996 S.D. 71 (S.D. 1996)   Cited 14 times
    Explaining that "[t]he small claims procedure is an alternative to the formal procedure for actions begun by summons"

    SDCL 15-2-13(3). Compare Annett, 1996 SD 58 ¶¶ 17-19, 548 N.W.2d 798 (no formal file activity for over one year and no informal activity for over two years — dismissed without prejudice); Du-Al Mfg. Co. v. Sioux Falls Const. Co., 444 N.W.2d 55 (S.D. 1989) (inexcusable activity for 12 years); Holmoe v. Reuss, 403 N.W.2d 30 (S.D. 1987) (four year delay in prosecution); Reed v. Heath, 383 N.W.2d 873, 874 (S.D. 1986) (no file activity for over two years, and no other excusable reasons given). [¶ 23] For these reasons, I respectfully dissent.

  6. Annett v. American Honda Motor Co., Inc.

    1996 S.D. 58 (S.D. 1996)   Cited 10 times
    In Annett, we rejected that plaintiff's argument that informal discovery and settlement activity were good cause because of the following facts: the informal discovery occurred during a federal court action which predated the filing of the state court case; and the non-record settlement activity ended a year before the dismissal.

    Hence, Holmoe's underlying rationale must be examined before its needless expansion in this case. Holmoe cites Reed v. Heath, 383 N.W.2d 873 (S.D. 1986), which stated that the ultimate responsibility for presenting an adequate record on appeal falls on the appellant. 403 N.W.2d at 33.

  7. Linard v. Hershey

    489 N.W.2d 599 (S.D. 1992)   Cited 7 times
    Allowing prejudgment interest where defendant frequently and sporadically did not pay his support obligation

    Initially, it must be noted that the record before us does not contain a transcript from the trial court. Accordingly, the record on appeal is confined to those pleadings and papers transmitted from the circuit court. Reed v. Heath, 383 N.W.2d 873, 874 (S.D. 1986); Pearson v. Adams, 279 N.W.2d 674, 676 (S.D. 1979). DECISION ISSUE I

  8. Matter of Estate of Wurster

    409 N.W.2d 363 (S.D. 1987)   Cited 5 times

    Pearson v. Adams, 279 N.W.2d 674 (S.D. 1979). See also Reed v. Heath, 383 N.W.2d 873 (S.D. 1986). A trial court must be permitted to correct its error or a reviewing court will not review it on appeal. State v. King, 400 N.W.2d 878, 880 (S.D. 1987) (citing Cooper v. Cooper, 299 N.W.2d 798, 800 (S.D. 1980)).