This case was instituted in justice court wherein defendant appeared, and a judgment was rendered in favor of *283plaintiff ‘and against the defendant. Within proper time ‘the defendant duly served the following notice of appeal omitting for-, mal parts and signature: “Please take notice that the above-named M. B. Reed appeals to the circuit court in and for said county from the judgment entered by the said justice of the peace in the above-entitled action, on the 13th day of August, 1910, against said 1VL B. Reed therein for the sum of ñfty-two and 17-100 dollars, and that said appeal is taken upon- questions of both law and fact.” Defendant also gave proper undertaking on appeal. Upon the call of the calendar in the circuit court respondent moved for a dismissal of the appeal on the ground that the notice of appeal was not sufficient to give the appellate court jurisdiction of the appeal, in that it failed to demand a new trial in the circuit court. This motion was granted, and to which ruling of the court appellant duly accepted, and now assigns the same as error.
We are of the opinion -that the said notice of appeal was sufficient to give the circuit court jurisdiction of the cause on appeal, and that the appeal was erroneously dismissed. By reason of having no statement of -the case or demand f'or new trial, the appellant, as the record then stood, might .have been in a helpless and stranded condition, so far as .obtaining a review on appeal of the questions of law and fact were concerned; but the circuit court by virtue of the notice of appeal and undertaking had, if for no other purpose than an affirmance of the judgment, acquired jurisdiction. The cause was then properly before the circuit court on appeal to be disposed of in accordance with the record before the circuit court. In so far as ¡the case of Tschetter v. Heiser, 9 S. D. 285, 68 N. W. 744, inferen'tially holds that the statement of case is a jurisdictional matter, we are unable to' agree with that decision. In that case the circuit court should have been directed to affirm the judgment of the justice court; instead of dismissing the appeal. No question of jurisdiction was involved in the case of Aldrich v. Ramoe, 21 S. D. 52, 109 N. 641, and that case is therefore not applicable to the question involved herein. This case is governed by th-e decision of Karr v. Railway Co., 6 Dak. 14, 50 N. W. 125. There is no conflict between these two last mentioned cases.
The judgment or order appealed from is reversed.