Opinion
File No. 9300.
Opinion filed June 12, 1952. Rehearing denied July 22, 1952.
Appeal from Circuit Court, Grant County; Hon. Harold W. King, Judge.
Appeal dismissed.
John Carl Mundt, Sioux Falls, for Claimant and Appellant.
R.M. Sheild, Salem, and Tait Tait, Milbank, for Contestants and Respondents.
Leo P. Flynn, Sioux Falls, for Estate of Adolph Weide, deceased, Elvin Weide and Elmer Weide, Executors.
Following the decision on a prior appeal in this case reported in 73 S.D. 448, 44 N.W.2d 208, the claimant, Gladys A.J. Weide made a motion in the circuit court to allow her claim in full and to dismiss the appeal from the county court to the circuit court taken by those who were objecting to her claim. The trial court denied this dual motion by order dated October 16, 1951, and Gladys Weide has appealed from such order. Respondents have asked that the appeal be dismissed.
[1, 2] The order from which the appeal is taken is an intermediate order which requires an order allowing the appeal by the Supreme Court before the appeal becomes effective. SDC 33.0701, 33.0704. No application was made for such allowance at the time of taking the appeal. Appellant requests that this court enter an order allowing the appeal at this time. However, we perceive no reason for so doing. All of the questions which appellant seeks to raise upon this attempted appeal may be raised upon an appeal from an adverse judgment. We are convinced that the ends of justice will be better served by considering the questions which appellant now seeks to raise after a trial of the issues and a decision, upon the merits.
The attempted appeal from the order of the circuit court dated October 16, 1951 is dismissed. An order will be entered accordingly.