IN RE SWANSON’S ESTATE, 67 S.D. 371 (1940)

293 N.W. 361

In Re SWANSON’S ESTATE NELSON, Appellant, v. THE FIRST NATIONAL BANK TRUST CO., OF SIOUX FALLS, et al, Respondents

File No. 8333.Supreme Court of South Dakota.
Opinion filed July 26, 1940.

Appeal and Error.

An order of the circuit court vacating an order dismissing an appeal from a final decree and amended final decree of county court was an “interlocutory order” and not appealable as a matter of right. SDC 33.0701.

Appeal from Circuit Court, Lincoln County; Hon. L.L. Fleeger, Judge.

Proceeding in the matter of the estate of Nils Peter Swanson, deceased, between Lydia Nelson, as executrix of the estate of Alfred Anderson, deceased, and the First National Bank Trust Company of Sioux Falls, as administrator with the will annexed of the estate of Nils Peter Swanson, deceased, and another. From an order vacating an order dismissing an appeal from a final decree, Lydia Nelson appeals.

Appeal dismissed.

Everett A. Bogue, of Parker, and Vernon W. Kron, of Centerville, for Appellant.

C.J. Delbridge and Danforth Danforth, all of Sioux Falls, for Respondents.

Page 372

PER CURIAM.

On August 25, 1931, the Circuit Court of Lincoln County signed an instrument denominated an “Order” dismissing an appeal from the final decree and the amended final decree of the County Court of Lincoln County. On the 21st day of July, 1939, the Circuit Court entered an order vacating and setting aside its purported order of August 25, 1931, above described. The appeal is from the order of July 21, 1939. An appeal has not been allowed by this court pursuant to the discretion lodged in it by SDC 33.0701(6).

We are of the opinion that the order is interlocutory and not appealable as a matter of right. SDC 33.0701; Duba v. Mellette County, 67 S.D. 90, 289 N.W. 417; Moore v. Hahn, et al., 65 S.D. 284, 273 N.W. 377; Paper Supply Co. v. MacDonald, 44 S.D. 100, 182 N.W. 526; National Casing Co. v. Schmechl, 44 S.D. 101, 182 N.W. 526; Warwick v. Bliss, 52 S.D. 107, 216 N.W. 865.

Our order will be that the appeal be dismissed.