Hauswirth v. Hartigan

296 N.W.2d 535 (1980)

Jack HAUSWIRTH, Plaintiff and Appellee, v. Gil S. HARTIGAN, Defendant and Appellant.

No. 12847.

Supreme Court of South Dakota.

Considered on Briefs April 22, 1980.

Decided September 17, 1980.

Rick A. Yarnall of Dana, Golden, Moore & Rasmussen, Sioux Falls, for plaintiff and appellee.

John N. Gridley III, Sioux Falls, for defendant and appellant.

*536 PER CURIAM.

This is an attempted appeal from a judgment entered in a breach of contract action initiated by appellee in small claims court for failure of appellant to pay him $800 as promised for substantially completing the painting, staining and varnishing of a house. Appellant removed the action to circuit court for jury trial pursuant to SDCL 15-39-17.

Jurisdiction of the Supreme Court must appear plainly and affirmatively from the record presented, and absent such a showing, this Court is required to determine its jurisdiction to consider the merits of the appeal. Estate of Putnam, 254 N.W.2d 460 (S.D.1977). Under SDCL 15-39-23, this Court is without jurisdiction to hear an appeal from a trial by jury pursuant to transfer of a small claims action to circuit court.[*] Accordingly, we dismiss the appeal.

[*] SDCL 15-39-23 provides:

The judgment entered pursuant to transfer for trial by jury either in the circuit court or in the formal side of the court where begun shall be final and no appeal may be taken therefrom.