Opinion
File No. 11370.
Opinion filed October 12, 1973
Appeal from an order of 18th District County Court; Hon. Paul H. Russell, District County Judge.
Allen G. Wilson, Hot Springs, for defendant.
While the record presented here may not comply with our statutes and rules of court, it appears that a complaint was filed charging defendant with a felony; that he appeared with his attorney before Paul H. Russell, District County Judge of the 18th County Court District in Fall River County, evidently for the purpose of a preliminary hearing. When defendant was asked if he desired a preliminary hearing, his counsel moved for a dismissal on grounds not necessary to be stated, and, after briefs were submitted, an order was entered August 24, 1973, denying the motion. On September 24, 1973, defendant filed a petition for allowance of appeal from that intermediate order with the notice of appeal.
While the order appears to be an order of the court, in State v. Wagner, 1972, 86 S.D. 382, 196 N.W.2d 360, the court had occasion to consider an appeal by the state from an order similarly titled as a court order made by a judge of the municipal court sitting as a committing magistrate at a preliminary hearing. With a rather thorough review of our statutes, we then held that such orders issued by committing magistrates are not appealable. Not being appealable, the petition to appeal is denied and the attempted appeal is dismissed.