majority">SMITH, J.

Appeal from, the circuit court of Ryman county. A brief statement of the facts is necessary to an understanding of the questions presented on this appeal.

The plaintiff, Henry Bergman, began an action in justice’s court before Frank R. Brooks, claiming to. recover $35 damages for cutting and removing hay from .plaintiff’s land. Change of venue was taken to Justice Conley’s court, thence to the court of Edward Egan, another justice of the county, and the record duly transmitted to the latter court. Thereafter another action was begun in Justice Egan’s court upon the same cause of action, claiming damages in a larger amount. The record is silent as to what became of the first action. The second action was tried be*9fore the justice without a jury, resulting in a judgment in favor of plaintiff and against defendant in the sum of $45 damages and $58.70 costs, a total of $103.70. From this judgment an appeal was taken to the circuit court of Eyman county, and was brought on for trial at the December, 1911, term. A jury was impaneled to try the cause, and a witness called to testify on behalf of plaintiff. Thereupon defendant made -the following objection: “Comes now the defendant and objects to any testimony in this action or under this complaint, for the reason that another cause of action is pending for the same subject matter and between the same parties; and said cause of action, not being properly dismissed. * * Further add to the motion that this is made upon all the files in the case and the transcript as certified from the justice court in which E. M. Egan was the justice of .peace, it appearing that the judgment was founded on one cause of action and the papers returned are for a different cause of action, and that the judgment be reversed as this court has no jurisdiction to try this cause,” The trial court’s ruling was as follows: “Eet the record show that the appeal is dismissed on the ground that -the summons and complaint do not appear to be on file in the 'office of the clerk of courts,” to which ruling defendant excepts. Thereafter the court entered a formal order dismissing the appeal, which, after certain recitals, proceeds: “and it appearing from the files in the action that no summons, complaint, or answer has been transmitted to this court by the justice of the peace from whose court the appeal was taken, and that there are no pleadings or other papers before this court upon which the action can be tried, it is ordered that the appeal be and is hereby- dismissed,” with judgment for costs taxed at $162.95.

Appellant assigns error in that -the trial court did not sustain defendant’s objection to the introduction of evidence under the complaint, for the reason .that another cause is pending for the same subject matter and between the same parties, “ * * * the judgment being founded on one cause of action and the papers returned to the court being on a different cause of action, and because plaintiff failed to make any request for leave to supply a proper complaint or to dismiss the other pending action. (2) That the court erred in making the order dismissing the appeal and entering the judgment for costs against appellant.” The record be*10fore the court on this appeal discloses a purported transcript of the justice’s docket showing proceedings on the trial and the judgment entered, and among the files in the case are the notice of appeal and an undertaking for costs on appeal. The justice’s transcript does not disclose the existence of any oral pleading or of any written complaint or answer, or other pleading's, nor does it contain any recital that any written pleadings were filed in the justice’s court, nor do any pleadings whatever appear in the records or files. Section 102 of the Justice’s Code provides that, upon receiving a notice of appeal, the payment of $1 for the return of the justice, and the filing of an undertaking on appeal, if the appeal be on questions of fact or both law and fact and a new trial in appellate court is demanded, the justice must within five days transmit to the clerk of the circuit court a certified copy of his docket, the pleadings, all notices, motions, and other papers filed in the cause, together with the notice of appeal and the undertaking filed. It further provides that the justice may be compelled by the appellate court, by an order ■ entered upon motion, to transmit such papers, and may be fined for neglect or refusal to transmit the same. Section 106, Id., provides that no notice of trial- or note of issue is required, and that the appeal shall be filed by the clerk on payment of his costs, and entered on the calendar, and shall stand for trial as the same is reached in the regular call of the calendar. The section further provides that, if not so filed within 15 days from the time the appeal is perfected, the appeal shall be dismissed by order of the court at any time thereafter upon motion of'the appellee after three days’ notice to the appellant or his attorney.

[x] In the case of McLaughlin v. Michel, 14 S. D. 190, 84 N. W. 778, this court held that the failure to file the appeal within 15 days is not jurisdictional, and, if no objection is taken, the court may proceed to try the case. The failure ’to file the appeal not being jurisdictional, the right of appellee to move for a dismissal of the appeal may be waived.

[2] It is perfectly clear that, where respondent goes to- trial without a timely motion for dismissal, the objection is finally and conclusively waived, and cannot be made the ground of any objection at the trial. In the case at bar no motion to dismiss the appeal for failure to file the same within 15 days was made by ap*11pellée, and, as the statute confers upon appellant no right to make objections in the appellate court for the failure of a justice to' transmit the record files and transcript, no question arising under the provisions of section 106 of tlie Justice’s Code is presented for review on this appeal.

[3] Pleadings in justice’s courts are not required to be in anv particular form, but must be such as to enable a person of common understanding to know what is intended. They may be oral or in writing. If in writing, they must be filed with the justice, and, if oral, an entry of their substance must be made in the docket. Justice’s Code, § 18. The docket is required to contain, among other things, a minute of the pleadings and motions, if in writing, referring to them, if not in writing, a concise statement of the material parts of the pleadings, and also the judgment ol the court and the time when rendered. Justice’s Code, § 93. The entries required when made in the justice’s docket, or a certified transcript, thereof, are prima facie evidence of the facts stated. Justice’s Code, § 94. The transcript of the justice’s docket before us on this appeal is absolutely silent as to pleadings. It contains no recital of the filing of a-complaint, answer, or other pleading, nor does it purport to contain the substance of any oral pleading. No written pleadings appear t among the files. It is not disclosed by any statement in the record that any pleadings arc, or ever were, in existence; nor is it stated or suggested by motion or otherwise, on the part either of appellant or respondent, that any pleadings in the action ever.were, or are now, in existence. In such a state of the record this court is not justified in assuming the existence of pleadings, or that the justice failed to 'transmit' pleadings with the record on appeal to the circuit court. However irregular the practice may have been, we can only assume that the action was tried in the justice’s court without pleadings, and was submitted to that court upon issues raised by the evidence, and that upon -the evidence and the issues thus presented and determined the justice entered the judgment disclosed in the transcript.

[4] Upon this record, the. action came on regularly for trial in the circuit court, and plaintiff caused a witness to be sworn and placed upon the witness stand to prove his cause of action. It then is disclosed upon objection by defendant 'and appellant to the *12introduction of evidence that no pleadings are before the trial court, and no complaint or issue upon which the evidence offered may be received. Upon such objection, it would have been competent for plaintiff to have asked leave to file a complaint, and, upon similar request and -leave, defendant -should have been permitted to file his -answer, thus presenting proper issues for trial •to the jury. The record discloses that neither party asked permission to fil-e pleadings.

[5] The only question presented is whether the circuit court may dismiss the appeal because of the absence of pleadings, oral or written. It is perfectly clear that the trial court on appeal is not required to enter upon a trial in -the absence of -pleadings. The law contemplates and requires that in -civil actions in all courts the parties by pleadings shall define the issues to- be determined -on -the -trial. Neither plaintiff nor defendant had any right to require -the -co-urt to proceed when it was disclosed that no pleadings were before the court. Upon the face of the record on appeal, -the trial court had- -the right to assume that no- pleadings bad ever existed. The appeal had -served its purpose, and had brought -the case into the circuit court for trial d-e novo. No question was before the court as to the proceedings relating to the appeal itself. The -cause was bef-o-re the court for trial. Clearly the trial- -court might have dismissed -the purported -action for want of issues to be tried, unless the parties -asked leave to- file proper pleadings, but it w-as error to- dismiss the appeal.

The judgment and order -of the trial -court are reversed-, and the cause remanded for further proceedings in accordance with the views herein expressed.

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