
    LARSON, Respondent, v. MUNSON et al., Appellants.
    (157 N. W. 318.)
    (File No. 3902.
    Opinion filed April 11, 1916.)
    1. Appeals — Dismissal of Appeal — Appeal from Order Overruling Demurrer — Supersedeas Bond as Condition to Appeal — Proceedings Below Pending Appeal.
    The giving of a supersedeas undertaking is not a condition to the right of appeal from the circuit court to the Supreme Court, even though the .trial court ordered the giving of same; it is a privilege, not a duty. In absence of such bond the adverse party may proceed as though no appeal was pending, subject to any damages resulting to appellant through such ■further proceedings below.
    2. Appeals — Dismissal of Appeal — Consent to Judgment on Demurrer After Appeal from Order Overruling, Effect — Moot Question.
    Where defendant, after taking an appeal from an order overruling his demurrer to a complaint, without giving a super-sedeas bond pursuant to an order of the trial court, consented to a judgment against him on the demurrer, for failure to give bond, held, that no present right is involved in the appeal, and., only a moot question is presented .thereby; and the appeal will he dismissed.
    Appeal froiu Circuit Court, Minnehaha County. H'on. Joseph W. JoNEs, Judge.’
    Action by Arne Larson, against Clarence Munson and another, to recover upon .a ¡promissory note. From a judgment for plaintiff, defendants appeal.
    Appeal dismissed.
    
      Kirby & Kirby, for Appellants.
    
      Parliman & Parliman, for Respondent.
    (1) To point one of the opinion, Appellants cited: Code Civ. Proc., 'Sec. 441; Sutton v. Con. Apex Min. .Co., 12 S. D. 576-
    Respondent cited: Codte Civ. Proc., Sec. 453.
    (2) To point two of the opinion Respondent cited: 3 Corpus Juris, pp. 360, 361, 362, 363, 671, 672, and notes a't bottom; Napier v. Dildy (Okla.) 132 Pac. 1085; Board of Commrs. v. Scott, (Ind.) 49 N. E. 395.
   WHITING, J.

This cause is (before us upon a motion to dismiss the appeal herein. Action wias brought to recover the amount due upon a promissory note. Defendant demurred to the complaint. The demurrer was, overruled. The appeal was from the order overruling defendant’s demurrer.

Defendant did not see fit to give- a supersedeas bond and thus stay further proceedings in the trial court. Owing to such • failure, plaintiff, long after the taking of the appeal herein, applied to the trial court for judgment. Such application was made upon notice 'to the defendant." Judgment was entered. The judgment recites :

“It appearing to the court that the plaintiff is entitled1 to judgment for the reason that defendants have appealed' said case to the Supreme Court * * * and haye failed', refused, and neglected to give a supersedeas1 bond or to in any manner secure or protect the plaintiff in said proceedings1, as heretofore ordered by the court.”

Said judgment .also recites:

“On motion of * * * plaintiff’s attorneys, and the defendants consenting thereto, it is ordered 'and adjudged,” etc.

The motion papers show that, upon'such judgment, plaintiff has -taken out an, execution and1 levied upon property of defendant sufficient to pay 'the same.

The present motion is- based upon the above facts. Respondent seems, to -be of the opinion that appellant -lost his. right of appeal by neglecting to give a supersedeas bond as provided by law and the order of the tria-l co-ur-t.' We know of no (provision of our statute Chat prescribes the giving of a super-sedeas undertaking- .as a condition precedent to a right of appeal. The giving of such an undertaking is- a privilege, and'- not a d'u-ty. If one is not given, the hand of 'the adverse party is not stayed, and he can proceed as though no appeal was. pending, -taking- his ■chance, however, upon the appeal being1 successful and his 'being held, for any damages that may .have resulted- to appellant through such further -proceeding’s as he has taken.

But in this case the appellant consented to judgment, thus completely removing any reason for an appeal and! making the question presented upon s-uch an appeal a purely moot question, and' the case, as it now stands, a moot case -not based upon any rights. Appellant having -consented to. the judgment, it must be presumed by this court that respondent was entitled thereto. It follows that -appellant was not wronged by the overruling- of his demurrer, and no right is now -involved1 on this appeal.

The -appeal is dismissed, without costs.  