#26092, #26093-dismissed-DG

2012 S.D. 20

                         IN THE SUPREME COURT
                                 OF THE
                        STATE OF SOUTH DAKOTA

                                ****
                               (#26092)

RABO AGRIFINANCE, INC., f/k/a AG
SERVICES OF AMERICA, INC., and
RABO AGSERVICES, INC.,                    Plaintiffs,

 v.

ROCK CREEK FARMS,                         Defendant and Appellant,

 and

MICHAEL ARNOLDY; ANN ARNOLDY;
and THE UNITED STATES OF AMERICA,         Defendants and Appellees,

 v.

DAVID M. FINNEMAN AND CONNIE S.
FINNEMAN, LUTZ/LAIDLAW PARTNERSHIP;
DANIEL R. MAHONEY; SUCCESSORS IN
INTEREST TO DAVID M. FINNEMAN AND
CONNIE S. FINNEMAN, d/b/a AIRPORT
FARMS; FARM CREDIT SERVICES OF
AMERICA f/k/a FARM CREDIT SERVICES OF
THE MIDLANDS, FCLA; BLACK HILLS
FEDERAL CREDIT UNION; AXA EQUITABLE
LIFE INSURANCE COMPANY; LAIDLAW
FAMILY PARTNERSHIP; TOM J. WIPF;
AMY WIPF; JOHNNY JAY WIPF, d/b/a WIPF
FARMS; JOANN WIPF; CEN-DAK LEASING
OF NORTH DAKOTA, INC.; SHEEHAN MACK
SALES AND EQUIPMENT, INC.; FARM CAPITAL
COMPANY, LLC; PORTFOLIO RECOVERY
ASSOCIATES, LLC; PFISTER HYBRID CORN CO.;
KAUP SEED & FERTILIZER, INC.; JOYCE M.
WOLKEN; CHARLES W. WOLKEN; STAN
ANDERSON; DENNIS ANDERSON; KENT
KJERSTAD; WILLIAM J. HUBER; KENDA K.
HUBER; YU BLU SNI, LLC; U.S. BANCORP
EQUIPMENT FINANCE, INC.; KENCO INC.
d/b/a WARNE CHEMICAL & EQUIPMENT
COMPANY, INC.; DOUG KROEPLIN AG
SERVICES, INC.; CREDICO, INC. d/b/a
CREDIT COLLECTIONS BUREAU;
SCOT D. EISENBRAUN, MELODY
EISENBRAUN; BART CHENEY; HALL
OBERLANDER, KEI OBERLANDER, RAY S.
OLSEN; PATRICK X. TRASK; ROSE MARY
TRASK; PENNINGTON COUNTY, SOUTH
DAKOTA; and, MEADE COUNTY, SOUTH
DAKOTA,                                   Defendants.

----------------------------------------------------------------

                               (#26093)

RABO AGRIFINANCE, INC., f/k/a AG
SERVICES OF AMERICA, INC., and
RABO AGSERVICES, INC.,                    Plaintiffs,

v.

DAVID M. FINNEMAN; CONNIE S.
FINNEMAN,                                 Defendants and Appellants,

and

MICHAEL ARNOLDY; ANN ARNOLDY;
and THE UNITED STATES OF AMERICA,         Defendants and Appellees,

v.

LUTZ/LAIDLAW PARTNERSHIP;
DANIEL R. MAHONEY; SUCCESSORS IN
INTEREST TO DAVID M. FINNEMAN AND
CONNIE S. FINNEMAN, d/b/a AIRPORT FARMS;
FARM CREDIT SERVICES OF AMERICA
f/k/a FARM CREDIT SERVICES OF THE
MIDLANDS, FCLA; BLACK HILLS FEDERAL
CREDIT UNION; AXA EQUITABLE LIFE
INSURANCE COMPANY; LAIDLAW FAMILY
PARTNERSHIP; TOM J. WIPF; AMY WIPF;
JOHNNY JAY WIPF, d/b/a WIPF FARMS;
JOANN WIPF; CEN-DAK LEASING OF NORTH
DAKOTA, INC.; SHEEHAN MACK SALES AND
EQUIPMENT, INC.; FARM CAPITAL COMPANY;
LLC; PORTFOLIO RECOVERY ASSOCIATES, LLC;
PFISTER HYBRID CORN CO.; KAUP SEED &
FERTILIZER, INC.; JOYCE M. WOLKEN; CHARLES
W. WOLKEN; STAN ANDERSON; DENNIS
ANDERSON; KENT KJERSTAD; WILLIAM J.
HUBER; KENDA K. HUBER; YU BLU SNI, LLC;
U.S. BANCORP EQUIPMENT FINANCE, INC.;
KENCO INC. d/b/a WARNE CHEMICAL &
EQUIPMENT COMPANY, INC.; DOUG KROEPLIN
AG SERVICES, INC.; CREDICO, INC. d/b/a
CREDIT COLLECTIONS BUREAU; SCOT D.
EISENBRAUN, MELODY EISENBRAUN;
BART CHENEY; HALL OBERLANDER,
KEI OBERLANDER, RAY S. OLSEN;
PATRICK X. TRASK; ROSE MARY TRASK;
PENNINGTON COUNTY, SOUTH DAKOTA;
and, MEADE COUNTY, SOUTH DAKOTA,        Defendants.

                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                   ****

                  THE HONORABLE JOHN J. DELANEY, SR.
                               Judge

                                   ****


STEVEN W. SANFORD
ALEX M. HAGEN of
Cadwell Sanford Deibert & Garry, LLP
Sioux Falls, South Dakota
and
BRIAN L. UTZMAN of
Smoot & Utzman, P.C.
Rapid City, South Dakota                  Attorneys for defendant and
                                          appellant Rock Creek
                                          Farms (#26092).
JAMES P. HURLEY of
Bangs, McCullen, Butler,
 Foye & Simmons, L.L.P.
Rapid City, South Dakota                  Attorneys for defendants and
                                          appellants Finnemans (#26093).

ROBERT R. SCHAUB of
Sundall, Schaub & Fox, P.C.
Chamberlain, South Dakota                 Attorneys for defendants and
                                          appellees Arnoldys.
JAN HOLMGREN
Assistant United States Attorney
Sioux Falls, South Dakota                 Attorneys for defendant and
                                          appellee the United States
                                          of America.


                                   ****
                                          CONSIDERED ON BRIEFS
                                          ON NOVEMBER 23, 2011

                                          OPINION FILED 03/14/12
#26092, #26093

GILBERTSON, Chief Justice

[¶1.]        Defendants and appellees Ann and Michael Arnoldy (Arnoldys) and the

United States of America move to dismiss appeals filed by defendants and

appellants Connie and David Finneman (Finnemans) (Appeal No. 26093) and Rock

Creek Farms (RCF) (Appeal No. 26092) for failure to serve their notices of appeal on

each party in this foreclosure action. The motions are granted and the appeals are

dismissed.

                          Facts and Procedural History

[¶2.]        Rabo Agrifinance, Inc., and Rabo AgServices, Inc. (Rabo) commenced a

foreclosure action in 2009 on a mortgage granted by Finnemans on approximately

17,000 acres of farmland. Rabo commenced its action against Finnemans, RCF

(Finnemans’ successor in interest), and all parties who had or may have had an

ownership or leasehold interest in the land. Approximately 44 defendants were

listed in Rabo’s complaint, including Arnoldys and the United States as lienholders.

Arnoldys and the United States both filed answers in the action.

[¶3.]        In late 2009, Rabo moved for judgment on the pleadings. The trial

court granted the motion and, in January 2010, entered a judgment and decree of

foreclosure in which it recognized RCF’s owner’s right of redemption. A sheriff’s

sale took place in April 2010. In March 2011, Ann Arnoldy redeemed from an

assignee of the purchaser of the sheriff’s certificate. In May 2011, Arnoldys filed a

Rule 60(b) motion to partially vacate the order for judgment on the pleadings and

judgment and decree of foreclosure with regard to RCF’s redemption rights. On

May 26, 2011, the trial court entered an order granting Arnoldys’ motion. The order

                                          -1-
#26092, #26093

struck and vacated the portion of the judgment and decree of foreclosure

recognizing RCF’s redemption rights on the basis that RCF and its predecessors,

Finnemans, waived those rights. The order also contained the following provision

concerning payment of the lien held by the United States:

              The Judgment and Decree of Foreclosure is partially vacated
              upon the condition that the US Government’s one-million dollar
              conviction lien against David M. Finneman and Connie
              Finneman be satisfied after Ann Arnoldy or Michael Arnoldy
              receive a deed to the foreclosed land from the Sheriff of
              Pennington County and after all appeals from this Order have
              been fully determined.

[¶4.]         On July 12, 2011, RCF filed a notice of appeal from the trial court’s

order partially vacating the judgment and decree of foreclosure and order granting

the motion for judgment on the pleadings. Finnemans filed a separate notice of

appeal from the same order on July 13, 2011.1

[¶5.]         On August 22, 2011, Arnoldys and the United States filed a joint

motion for dismissal of Finnemans’ appeal for failure to serve the notice of appeal

on the United States and a number of other named parties. On August 24, 2011,

Arnoldys and the United States filed a similar motion to dismiss RCF’s appeal. On

September 30, 2011, this Court entered orders in both cases deferring its decision,

directing briefing on the motions, setting forth a briefing schedule, and staying

briefing on the merits pending our final decision. We have consolidated the cases

for purposes of deciding the motions to dismiss.




1.      RCF and Finnemans are represented by separate counsel in this matter.
                                      -2-
#26092, #26093

                                          Issue

[¶6.]         Whether Finnemans’ and RCF’s appeals should be dismissed
              for failure to serve notices of appeal on the United States and
              other named parties.

[¶7.]         In In re Reese Trust, 2009 S.D. 111, ¶¶ 5, 14, 776 N.W.2d 832, 833, 836,

this Court held:

              SDCL 15-26A-4 sets forth the steps for taking an appeal to this
              Court. SDCL 15-26A-4(3) provides in pertinent part: “The
              appellant, or his or her counsel, shall serve the notice of appeal
              and docketing statement on counsel of record of each party other
              than appellant, or, if a party is not represented by counsel, on
              the party at his or her last known address.” (Emphasis added).
              Failure to timely serve and file a notice of appeal is
              jurisdictionally fatal to the appeal. Hardy v. W. Cent. Sch. Dist.,
              478 N.W.2d 832, 834 (S.D. 1991) (citing W. States Land & Cattle
              Co., Inc. v. Lexington Ins. Co., 459 N.W.2d 429, 432 (S.D. 1990)).

              ....

              Failure to serve a notice of appeal on a party before the time for
              taking an appeal has expired is fatal to the appeal and requires
              its dismissal. See Long v. Knight Const. Co., Inc., 262 N.W.2d
              207 (S.D. 1978) (citing Morrell Livestock Co. v. Stockman’s
              Comm’n Co., 77 S.D. 114, 86 N.W2d 533 (1957)).

Accord In re B.C., 2010 S.D. 59, 786 N.W.2d 350; In re Estate of Geier, 2012 S.D. 2,

__ N.W.2d __; In re Estate of Flaws, 2012 S.D. 3, __ N.W.2d __. “‘[O]rdinarily, the

term party has a technical legal meaning, referring to those by or against whom a

legal suit is brought . . . the party plaintiff or defendant . . . . ’” Newman v.

Newman, 663 A.2d 980, 987 (Conn. 1995) (quoting Lieberman v. Reliable Refuse Co.,

563 A.2d 1013, 1017 (Conn. 1989)).

[¶8.]         Both Finnemans and RCF state in their briefs that approximately 44

defendants were named in Rabo’s foreclosure action, including the United States.


                                            -3-
#26092, #26093

The complaint was served on the United States as a defendant. Captions on the

pleadings and other formal legal documents filed in the case listed the United

States as a defendant. See Reese Trust, 2009 S.D. 111, ¶ 6, 776 N.W.2d at 833-34

(“Typically, the parties to a case can be identified by referring to the parties named

in the captions on the pleadings and other formal legal documents filed in the

proceeding.”). Although Finnemans and RCF give inconsistent indications in their

briefs as to whether the United States answered the complaint, the record clearly

shows that the United States did file an answer. Both Finnemans and RCF state in

their briefs that the United States appeared in the case, albeit belatedly. Both

Finnemans and RCF state in their briefs that they simply concluded that they need

not serve their notices of appeal on the United States and “other parties” whose

rights of redemption to the property had lapsed. The certificates of service

accompanying both Finnemans’ and RCF’s notices of appeal fail to reflect service on

the United States.

[¶9.]        On the face of the briefs and record summarized above, the United

States was a party defendant and should have been served with Finnemans’ and

RCF’s notices of appeal. See Reese Trust, 2009 S.D. 111, ¶¶ 5, 14, 776 N.W.2d at

833, 836; In re B.C., 2010 S.D. 59, 786 N.W.2d 350; Estate of Geier, 2012 S.D. 2, __

N.W.2d __; Estate of Flaws, 2012 S.D. 3, __ N.W.2d __. Failure to do so is

jurisdictionally fatal to both appeals and requires their dismissal. See id.

Suspension or Waiver of the Service Requirement

[¶10.]       Finnemans and RCF offer a series of arguments against the above

result. First, they assert that the requirement of timely service of the notice of

                                          -4-
#26092, #26093

appeal on a party is non-jurisdictional and may be suspended or waived by this

Court. They rely on SDCL 15-26A-2, -6, and -92. Those rules collectively indicate

that only timely filing of the notice of appeal may not be suspended or waived.2

Although SDCL 15-26A-4 suggests that both timely service and filing of the notice

of appeal may not be suspended or waived,3 Finnemans and RCF argue a

harmonious construction of SDCL 15-26A-2, -4, -6, and -92 makes clear that only

the timely filing of the notice of appeal is jurisdictional and may not be suspended


2.    SDCL 15-26A-2 provides:

             In the interest of expediting decision in cases of pressing concern
             to the public or to litigants, or for other good cause shown, the
             Supreme Court, except as otherwise provided in § 15-26A-92,
             may suspend the requirement or provision of these rules on
             application of a party or on its own motion and may order
             proceedings in accordance with its direction.

      (Emphasis added).

      SDCL 15-26A-6 provides in relevant part: “An appeal from a judgment or
      order must be taken within thirty days after the judgment or order shall be
      signed, attested, filed and written notice of entry thereof shall have been
      given to the adverse party.”

      SDCL 15-26A-92 provides:

             The Supreme Court for good cause shown may upon motion
             enlarge or extend the time prescribed by this chapter for doing
             any act or may permit an act to be done after the expiration of
             such time; but the Supreme Court may not enlarge the time for
             filing a notice of appeal.

      (Emphasis added).

3.    SDCL 15-26A-4 provides in relevant part: “Failure of an appellant to take
      any step other than timely service and filing of a notice of appeal does not
      affect the validity of the appeal, but is ground only for such action as the
      Supreme Court deems appropriate, which may include dismissal of the
      appeal.” (Emphasis added).
                                           -5-
#26092, #26093

or waived. This argument ignores that to timely file a notice of appeal, it is

necessary to timely serve the notice of appeal. See SDCL 15-26A-4(4) (stating the

clerk of court shall not accept for filing a notice of appeal, “unless accompanied by

. . . proof of service of copies thereof on each party other than the appellant”). Thus

the requirement of timely service is subsumed within the requirement of timely

filing of the notice of appeal and, like that requirement, it is jurisdictional and may

not be suspended or waived by this Court.

[¶11.]       Finnemans and RCF argue that this Court expressly concluded in

People ex rel. South Dakota Department of Social Services (Ex rel. DSS) that “the

only requirement which cannot be suspended is timely filing [of] a notice of appeal.”

2011 S.D. 26, ¶ 7, 799 N.W.2d 408, 409 (emphasis added). In Ex rel. DSS, the

father in a termination of parental rights appeal petitioned to have the appeal

reinstated after it was dismissed for violation of the requirement of his signature on

the notice of appeal. See SDCL 15-26A-4(1) (requiring a notice of appeal in a

termination of parental rights case to be signed by “the appellant and his or her

attorney.”). In resolving whether the signature requirement was jurisdictional, this

Court quoted SDCL 15-26A-2 and 15-26A-92 and observed, “the only requirement

which cannot be suspended is timely filing [of] a notice of appeal.” Ex rel. DSS,

2011 S.D. 26, ¶ 7, 799 N.W.2d at 409 (emphasis added). That observation, however,

was not accompanied by any analysis or reversal of our prior case law recognizing

the requirement of timely service of the notice of appeal on a party as jurisdictional

and holding the lack of such service to be fatal to an appeal. See Morrell, 77 S.D.

114, 86 N.W.2d 533; see also Long, 262 N.W.2d at 208 (stating that failure to serve

                                          -6-
#26092, #26093

notice of appeal upon defendant-respondent before the time for taking the appeal

expired was fatal to the appeal); W. States, 459 N.W.2d at 432 (stating that failure

to timely serve and file the notice of appeal was jurisdictionally fatal to the appeal’s

validity); Hardy, 478 N.W.2d at 834 (observing that failure to timely serve and file a

notice of appeal is jurisdictionally fatal to an appeal’s validity); Reese Trust, 2009

S.D. 111, ¶ 5, 776 N.W.2d at 833 (observing that failure to timely serve and file a

notice of appeal is jurisdictionally fatal to the appeal); In re B.C., 2010 S.D. 59, ¶ 3,

786 N.W.2d at 351 (observing that failure to serve a party with the notice of appeal

requires dismissal of the appeal). Most of these decisions were not even discussed

or mentioned in Ex rel. DSS. Therefore, we decline to view that case as modifying,

narrowing, or overruling these decisions in a manner permitting the suspension or

waiver of the requirement of timely service of the notice of appeal on a party.

The United States’ Status as a Party

[¶12.]       Finnemans and RCF next argue that the United States was not a

party entitled to service of the notice of appeal because it lost its party status by

failing to act on its redemption rights and by allowing those rights to lapse. In

support of this argument, they offer an analysis of the substantive law of foreclosure

proceedings and redemption rights. As authority for such analysis, Finnemans and

RCF cite Morrell, 77 S.D. 114, 86 N.W.2d 533, Reese Trust, 2009 S.D. 111, 776

N.W.2d 832, and In re B.C., 2010 S.D. 59, 786 N.W.2d 350, contending those cases

teach that it is the interest of the party not served with the notice of appeal, not its

formal designation, that determines whether the party should have been served.



                                           -7-
#26092, #26093

[¶13.]         Finnemans and RCF would read SDCL 15-26A-4(3) as only requiring

service of the notice of appeal on each party interested in the appeal. The rule,

however, is not so narrow and requires service on “each party,” without

qualification. Id. Morrell, Reese Trust, and In re B.C. offered unique challenges in

identifying parties. In Morrell, the issue was over failure to serve a named

codefendant who had not answered, appeared, or participated in the case below

other than as a subpoenaed witness. Nevertheless, based in part upon the

codefendant’s interest in the judgment, this Court held he was a party entitled to

service of the notice of appeal.4 In Reese Trust, the issue was over failure to serve a

Foundation that did not appear or participate in the trust proceedings below other

than being named a new beneficiary of a trust whose original charitable purpose

had become impossible to fulfill.5 Noting the difficulty of identifying parties in such

cases, this Court found the Foundation’s interest in the judgment clarified that it

was a party entitled to service of the notice of appeal. In In re B.C., the issue was

over failure to serve Indian Tribes that had intervened at the trial court level in

four different child abuse and neglect cases where the Tribes’ participation in the

lower court proceedings was “varied and uncertain.” 2010 S.D. 59, ¶ 4, 786 N.W.2d

at 351. Based upon the Tribes’ “compelling interests” in the outcome of the appeals,



4.       Morrell was actually decided under the prior version of the rule requiring
         service of the notice of appeal on only “‘adverse part[ies].’” Morrell, 77 S.D. at
         115, 86 N.W.2d at 534 (quoting SDC 33.0703). Thus, the unserved
         codefendant was not only deemed a party in the case, but an adverse party.

5.       The Foundation was served with the petition for distribution of trust assets
         that commenced the lower court proceedings in the case. See Reese Trust,
         2009 S.D. 111, ¶ 13 n.5, 776 N.W.2d at 836 n.5.
                                           -8-
#26092, #26093

this Court held the Tribes were parties entitled to service of the notices of appeal.6

Id. ¶ 10, 786 N.W.2d at 353.

[¶14.]         This case offers none of the unique challenges of Morrell, Reese Trust,

or In re B.C. in identifying the United States’ status as a party in this matter. See

Geier, 2012 S.D. 2, ¶ 18, __ N.W.2d at __ (observing that it is when parties cannot

be “readily identified” that the substantive law in the relevant type of proceeding

must be consulted to identify the parties required to be served with the notice of

appeal). As noted above, the United States was named as a party defendant, served

as a party defendant, answered as a party defendant, and appeared and

participated in the case below. Clearly, the United States was a party entitled to

service of the notice of appeal.

[¶15.]         Moreover, even if some additional interest by the United States in the

judgment or order was necessary for it to have party status in this matter, that

interest is also present. As set forth under the facts, the order on appeal specifically

provided as to the lien of the United States that:


6.       Two more recent cases have offered similar challenges in identifying parties.
         In Estate of Geier, 2012 S.D. 2, __ N.W.2d __, the issue was over failure to
         serve the nonappealing heirs in an estate case who had been served with the
         pleadings relating to the appealing heir’s petition for supervised
         administration of the estate and removal of the personal representative.
         Based in part upon the nonappealing heirs’ potential financial stake in the
         outcome of the petition, this Court held they were parties in the case entitled
         to service of the notice of appeal. In Estate of Flaws, 2012 S.D. 3, __ N.W.2d
         __, the issue was over failure to serve a putative heir of an estate who had
         been nominated by another putative heir to be a co-personal representative of
         the estate. This Court held the first putative heir’s potential interest in the
         estate and nomination as a co-personal representative were sufficient to
         make her a party in the case entitled to service of the notice of appeal
         (although we found the service requirement fulfilled by means not applicable
         here).
                                              -9-
#26092, #26093

               The Judgment and Decree of Foreclosure is partially vacated
               upon the condition that the US Government’s one-million dollar
               conviction lien against David M. Finneman and Connie
               Finneman be satisfied after Ann Arnoldy or Michael Arnoldy
               receive a deed to the foreclosed land from the Sheriff of
               Pennington County and after all appeals from this Order have
               been fully determined.

This provision guarantees the United States payment when Arnoldys receive a

deed, obviating the need for further action. A lien, however, would require

foreclosure by the United States and the additional costs and delays attendant to

such an action before the debt would be satisfied. As the United States summarizes

it, therefore, this provision, “represents the difference between being handed a

check and going back to court.” While Finnemans and RCF argue this provision is

not the subject of their appeals, the entire order of the trial court would be before

this Court on appeal and subject to reversal or a reversal and remand for further

proceedings, placing the provision at risk. Therefore, we hold the United States’

interest in having this provision upheld7 reinforces its status as a party in this

matter entitled to service of the notice of appeal.

[¶16.]         Finnemans and RCF also cite a series of cases requiring an appellant

to have an interest in the controversy and to be prejudiced or aggrieved by the

decision appealed from. See In re Estate of Bartholow, 2006 S.D. 107, ¶ 5, 725

N.W.2d 259, 261 (citing Carlson v. W. River Oil Co., 75 S.D. 333, 335, 64 N.W.2d

294, 295 (1954); Quinn v. Mouw-Quinn, 1996 S.D. 103, ¶ 20, 552 N.W.2d 843, 847).

They argue that these requirements help define the United States as a bystander or



7.       An interest apparently sufficient to warrant the United States’ appearance
         and argument in these motion proceedings.
                                           -10-
#26092, #26093

non-party to this appeal. However, these requirements apply only to the appellant

and concern the right of appeal, not the right to respond. See id.8 The United

States was not the appellant here. Therefore, we find these requirements of no

assistance in determining the United States’ status in this matter as a party

entitled to service of the notice of appeal.

Waiver or Cure of Procedural Default

[¶17.]         Finally, Finnemans and RCF again request that this Court exercise

discretion to waive the requirement of timely service of the notice of appeal or

permit them to otherwise cure their procedural default. We have addressed the

jurisdictional nature of the service requirement and our inability to suspend or

waive it above and will not readdress those issues here. The authorities cited by

Finnemans and RCF in support of a waiver or cure have not involved procedural

errors deemed jurisdictional in nature and, therefore, we find them distinguishable.

See Fair v. Nash Finch Co., 2007 S.D. 16, 728 N.W.2d 623 (failure to file a

statement of issues in an administrative appeal in circuit court); Christenson v.

Bergeson, 2004 S.D. 114, 688 N.W.2d 421 (failure to file a statement of issues in an

appeal before this Court); Vitek v. Bon Homme Cnty. Bd. Comm’rs, 2002 S.D. 100,

650 N.W.2d 513 (a bond deficiency in an appeal from a county commission to circuit

court); Oberle v. City of Aberdeen, 470 N.W.2d 238 (S.D. 1991) (failure to file a


8.       The requirements are designed to address the concern that an appellate court
         would otherwise decide “‘abstract, hypothetical, or moot questions,
         disconnected from the granting of actual relief, however important and
         however simple they may be.’” See Estate of Bartholow, 2006 S.D. 107, ¶ 6,
         725 N.W.2d at 261 (quoting Massengill v. Massengill, 36 Tenn. App. 385, 255
         S.W.2d 1018 (1952)). We fail to identify any such concern resulting from the
         United States’ participation in this appeal.
                                            -11-
#26092, #26093

statement of issues in an administrative appeal in circuit court); W. States, 459

N.W.2d 429 (failure to file a statement of issues in an appeal before this Court);

Meade Educ. Ass’n v. Meade Sch. Dist. 46-1, 399 N.W.2d 885 (S.D. 1987) (failure to

file a statement of issues in an administrative appeal in circuit court); State

Highway Comm’n v. Olson, 81 S.D. 237, 132 N.W.2d 927 (1965) (failure to file

assignments of error in an appeal before this Court).

[¶18.]       Matter of Weickum’s Estate, 317 N.W.2d 142 (S.D. 1982), also cited by

Finnemans and RCF, did involve failure to serve the notice of appeal on parties to

the action. Although this Court held in that case that the failure to serve the notice

did not affect the validity of the appeal, it also cautioned that future appellants

should comply with the requirement, “or their appeal may be subject to dismissal.”

Id. at 144 n.1. Weickum’s Estate also failed to reconcile its resolution of the service

issue with our earlier holdings requiring the dismissal of appeals where all parties

are not served. See, e.g., Morrell, 77 S.D. 114, 86 N.W.2d 533; Long, 262 N.W.2d

207. Therefore, we deem the disposition of this issue in Weickum’s Estate

anomalous and unpersuasive in this matter.

                                     Conclusion

[¶19.]       For the foregoing reasons, Finnemans’ and RCF’s appeals are

dismissed for failure to serve their notices of appeal on each party to the action.

[¶20.]       Dismissed.

[¶21.]       KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.




                                          -12-
