Schmuck v. Dakota Southern Railway Co.

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…