(dissenting).
[¶ 30.] I dissent from the majority’s decision that the trial court did not err in refusing to dismiss the appeal for failure to personally serve Alexander.
[¶ 31.] On August 1, 1996, the conditional use permit granted to Alexander was published. Schrank, on August 2,1996, appealed this decision to circuit court. Service of the appeal was made on one of the members of the board of county commissions on August 2,1996. No notice of appeal was ever served on Alexander. I repeat, no notice of appeal was ever served on Alexander.
[¶ 32.] On September 4, 1996, which was past the twenty-day limit for service, Alexander made two motions, to wit: motion to intervene to move to dismiss and intervenor’s motion to dismiss. The majority states that Alexander moved to intervene and to dismiss the appeal. (Copies of these motions are attached to this opinion for incorporation and review.) It is crystal clear from the attached motions and the record that Alexander moved to intervene in the first instance to challenge the jurisdiction of the court and dismiss the action because of the failure of Schrank to make timely service on Alexander of the notice of appeal. When the circuit court denied the motion to dismiss, Alexander then asked to continue in the lawsuit to protect its interests, which the trial court allowed.
DECISION
[¶ 33.]The trial court should have dismissed this lawsuit pursuant to Alexander’s motion to dismiss because Alexander was not timely served with a notice of appeal.
[¶ 34.] According to SDCL 7-8-29, the appeal “shall be taken within twenty days after the publication of the decision of the board by serving a written notice on one of the members of the board (county commissioners) when the appeal is taken by any person aggrieved by the decision of the board.” (Emphasis added.)
[¶ 35.] It is conceded that Shrank fulfilled the statutory requirement. However, he did not timely serve Alexander with notice of the appeal and this requirement is not confined to statute. The South Dakota Constitution, Article VI, § 2, provides that “[n]o person shall be deprived of life, liberty or property without due process of law.” “It is rudimentary that a statute must serve and cannot abrogate the Constitution.” Kane v. Kundert, 371 N.W.2d 172, 175 (S.D.1985).
[¶ 36.] Even though SDCL 7-8-29 does not expressly provide that a successful applicant for some county decision must be joined in an appeal of that county decision, such joinder is required by due process and, without this joinder, the circuit court has no jurisdiction to hear the appeal. Lyman County v. Board of Com’rs., 14 S.D. 341, 85 N.W. 597 (1901). In Lyman a person had made a claim against the county and his claim was approved. Subsequently, the decision of the county board of commissioners was appealed, however, the claimant was not given notice of the appeal. Our Supreme Court stated:
How [claimant’s] claim against the county can be lawfully adjudicated in a proceeding to which he is not a party, and of which he has no notice, is beyond our comprehension. It is absurd to say that his claim could be reduced by the circuit court ... without his having any opportunity to be heard. The legislature could not have intended any such ridiculous result, and if it did the procedure would be clearly unconstitutional, as depriving the claimant *685of his property without due process of law. Const. Art. 6, §§ 2, 20.”
14 S.D. at 345-46, 85 N.W. at 598. (Emphasis added.)
[¶ 37.] If the reversal or modification of the judgment or order appealed from cannot be accomplished without adversely affecting the interest of the party not served with notice, failure to make such service must be held fatal to the entire appeal. City of Sioux Falls v. Naused, 88 S.D. 14, 214 N.W.2d 74 (1974); Morrell Livestock Co. v. Stockman’s Commission Co., 77 S.D. 114, 86 N.W.2d 533 (1958); Millard v. Baker, 76 S.D. 529, 81 N.W.2d 892 (1957); Union Bond & Mortgage Co. v. Brown, 64 S.D. 596, 269 N.W. 472 (1936).
[¶ 38.] Alexander was entitled to timely notice of the appeal pursuant to our constitution requiring due process, and pursuant to well-established case law.
A There is no subject matter jurisdiction.
[¶ 39.] Alexander was not only entitled to be served with proper notice but also that the service be timely made.
1. Proper Notice.
[¶ 40.] The South Dakota Constitution requiring due process entitled Alexander to be served with notice of the appeal. Without service there is no jurisdiction. In Lyman, 14 S.D. at 346, 85 N.W. at 598, it was stated: “We therefore construe the statute to mean that written notice required- to be served must in such cases be served upon the claimant. Such notice not having been served upon the claimant, the circuit court was without jurisdiction, this court is without jurisdiction, and the appeal is dismissed.” (Emphasis added.)
[¶ 41.] This lack of jurisdiction included subject matter jurisdiction. Subject matter jurisdiction is defined as “... the power to hear and determine cases of the general class to which the proceedings in question belong. 21 CJS Courts § 23.” Mellette County v. Arnold, 76 S.D. 210, 215-16, 75 N.W.2d 641, 644 (1956). The majority states that Lyman, supra, dealt with a lack of personal jurisdiction only. I disagree. Lyman dealt with a lack of personal jurisdiction and subject matter jurisdiction, to wit:
[T]he claimant was not notified of the appeal to the circuit court, and ... he was not notified of the appeal from that court to this, it [therefore] follows that neither the circuit court nor this court ever acquired jurisdiction of the claimant’s person, or had authority to hear and determine his right to the compensation alleged to be due him from Lyman county.
14 S.D. at 346, 85 N.W. at 598. (Emphasis added.) The “[authority] to hear and determine” is subject-matter jurisdiction. Because there was no proper service made the circuit court could not exercise its authority to hear and determine the matter before it.
[¶ 42.] Let me clarify. “In order to act in a case, a court must be vested with both jurisdiction over the subject matter and jurisdiction over the parties.” 20 Am.Jur.2d Courts § 70 at 383. Subject-matter jurisdiction cannot be exercised until there is proper and timely service. 21 CJS Courts § 10, fn. 51; Lyman, supra. The circuit court in this case certainly had the power and/or authority to hear and determine this type of case, but until there was proper and timely service upon Alexander (personal jurisdiction), it cannot exercise that power.
[¶ 43.] When the circuit court is without jurisdiction of the subject matter in litigation, the Supreme Court does not acquire jurisdiction by appeal to it from a judgment of the circuit court. In Be Mackrill’s Addition, 85 S.D. 196, 201, 179 N.W.2d 268, 270 (S.D.1970).
2. Timely Service.
• [¶ 44.] SD'CL 7-8-29 requires that any appeal be taken within twenty days after the publication of the decision of the board. This time limit would certainly be applicable to Alexander as well as Schrank. Thus, a limitation on the action exists. Grieves v. Danaher, 60 S.D. 120, 243 N.W. 916, 918 (1932), provided “a valid notice of appeal within the time prescribed by law is essential to give (an appellate) court jurisdiction of the subject-matter (and such) court has no power to extend the time for taking an appeal by *686serving the statutory notice.” Even though Alexander appeared in court to intervene (which it had a perfect right to do) it was .after the twenty days. The trial court, like any appellate court, “is without jurisdiction of an untimely appeal,” and the acts of the parties cannot restore that jurisdiction. Long v. Knight Const. Co., Inc., 262 N.W.2d 207, 209 (S.D.1978).
[¶45.] In other words, a valid notice of appeal must have been taken within twenty days and Alexander must have been served. When the twenty days passed the court no longer had any subject matter jurisdiction. Alexander’s appearance cannot give jurisdiction of an untimely appeal. Subject-matter jurisdiction cannot be waived. Application of Koch Exploration Co., 387 N.W.2d 530 (S.D.1986).
[If 46.] The trial court did not have nor does this Court have subject-matter jurisdiction.
B. There is no personal jurisdiction.
[¶ 47.] The majority states “here, there is no claimed defect in personal jurisdiction.” This is not accurate for the following reasons:
1. Early in the majority opinion they state just the opposite, to wit: “Alexander and County argue that the trial court lacked jurisdiction in this case because Alexander was not personally served with the notice of appeal.”
2. Alexander’s court papers read as follows: “Motion to Intervene the defense stated in the accompanying ‘In-tervenor’s Motion to Dismiss’ may be presented. Copies of these court documents are attached hereto and incorporated herein by this reference. Alexander clearly intervened in the first instance to move for dismissal because of a lack of timely service of the notice of appeal asserting the court was without personal jurisdiction. Further, that the time for appeal had expired.”
3. Contained within the Intervenor’s Motion to Dismiss, and in support thereof is cited the Lyman case with quotes therefrom and the argument that the court has no jurisdiction, including personal jurisdiction, over Alexander. The majority states that the Lyman case only dealt with a lack of personal jurisdiction and yet notwithstanding the fact that Alexander cites this case as support for its motion to dismiss, the majority states that in this ease Alexander makes no claim of a lack of personal jurisdiction. Further, the record is replete with argument by Alexander of the necessity of its being personally and timely served and citing the Lyman case as supporting authority-
[¶ 48.] Alexander had the right to intervene, pursuant to SDCL 15-6-24, in that it had a direct interest in the litigated matter and would be affected by the court’s decision. Additionally, pursuant to SDCL 15-6-12, Alexander had the right to appear and challenge jurisdiction, both personal and subject-matter, without waiver of personal jurisdiction. Williams Ins. v. Bear Butte Farms Ptnp., 392 N.W.2d 831 (S.D.1986). The distinction between general and special appearances has been eliminated and defenses to jurisdiction must be raised by motion or answer. Matter of JWW, 334 N.W.2d 513 (S.D.1983). Alexander properly raised the personal and subject-matter jurisdictional issues by motion. It did nothing to waive personal jurisdiction and properly preserved the issue of jurisdiction on appeal.
[¶ 49.] The ease of Ruden v. Dalkin & Dalkin, 62 S.D. 66, 251 N.W. 807 (1934) cited by the majority in support of personal jurisdiction over Alexander, is totally inapplicable. In that case, the defendant intervened because of an interest in the litigation and did so without reseivation of any question of jurisdiction. In other words the intervenor did not raise any jurisdictional (personal or subject matter) issue with the court. The case is not authority for the factual situation at present.
[¶ 50.] The majority also say that Alexander’s due process concerns totally lack merit, apparently because it had the opportunity to present its case after its motion to dismiss was denied. However, in addition to the opportunity to be heard, a person is entitled to reasonable notice, which includes proper *687and timely service thereof. The majority also states that Alexander has not shown how he was prejudiced by not being served with notice. Is the majority now holding that if anyone wants to challenge the insufficiency of service of process, improper service, or allege no service at all, that they must now show prejudice or else they may be in the lawsuit? Frankly, Alexander does not have to show any prejudice. Alexander only had to show it was not properly nor timely served with notice, which it did.
[¶ 51.] The procedure set out in SDCL 7-8-29 is clearly unconstitutional. Our Supreme Court stated this in 1901 and it still holds true. The only way around this obvious constitutional deficiency is for the majority to hold that Alexander waived personal jurisdiction by appearing in court. The attached motions of Alexander and the record in this case clearly show otherwise.
[¶ 52.] The majority has converted an appearance by Alexander to challenge jurisdiction into a waiver of personal jurisdiction and a waiver of due process. I believe this is not supported by the facts in this ease and sets a very dangerous precedent.
[¶ 53.] I am authorized to state that Justice AMUNDSON joins in this dissent.
ATTACHMENT
STATE OF SOUTH DAKOTA SS. COUNTY OF PENNINGTON Appellant, GARRY SCHRANK, vs. PENNINGTON COUNTY BOARD OF COMMISSIONERS, Respondent, and ALEXANDER DRILLING, Hill City, South Dakota, Intervenor/Appellee.
IN CIRCUIT COURT SEVENTH JUDICIAL CIRCUIT
MOTION TO INTERVENE TO MOVE TO DISMISS
Comes now Intervenor/Appellee and moves this Court, pursuant to SDCL 15 — 6— 24, for its order granting him leave to intervene in this appeal so that the defense stated in the accompanying “Intervenor’s Motion to Dismiss” may be presented. Intervenor/Ap-pellee, as the successful applicant for the Conditional Use Permit that is the subject of this appeal, is an indispensable party, Spanish Wells Prop. Owners v. Bd. of Adj., 295 S.C. 67, 367 S.E.2d 160 (1988); Schroeder v. Burleigh Cty. Bd. of Com’rs., 252 N.W.2d 893 (N.D.1977), in that the disposition of this appeal may impair or impede his ability to protect his rights under that Permit, and the defense raised in the accompanying “Interve-nor’s Motion to Dismiss” is a meritorious one. Intervenor/Appellee accordingly urges this Court to grant his motion.
Dated this 4th day of September, 1996.
STATE OF SOUTH DAKOTA SS. COUNTY OF PENNINGTON GARRY SCHRANK, Appellant, vs. PENNINGTON COUNTY BOARD OF COMMISSIONERS, Respondent, and ALEXANDER DRILLING, Hill City, South Dakota, Intervenor/Appellee.
IN CIRCUIT COURT SEVENTH JUDICIAL CIRCUIT
INTERVENOR’S MOTION TO DISMISS
Intervenor/Appellee [hereinafter Alexander] moves this Court to dismiss this appeal for failure to timely join an indispensable party. This action is an appeal, brought by the Appellant [hereinafter Schrank] from an action of the Board of the Pennington County Commissioners, taken July 16, 1996, approv-*688tag Alexander’s application for a Conditional Use Permit under the Pennington County Zoning Ordinance. Schrank did not join Alexander as a party, and has never served Alexander with -his Notice of Appeal nor with any other pleading in this matter.
It has been settled law in South Dakota, ever since Lyman County v. Board of Com’rs., 14 S.D. 341, 85 N.W. 597, 598 (1901), that even though SDCL 7-8-29 does not expressly provide that a successful applicant for some County decision must be joined in an appeal of that County decision, such join-der is required by due process, and without this joinder, the Circuit Court has no jurisdiction to hear the appeal. As Lyman County explains, how the successful applicant’s case with
the county can be lawfully adjudicated in a proceeding to which he is not a party, and of which he has no notice, is beyond our comprehension. It is absurd to say that his claim could be [decided] by the circuit court ... without his having any opportunity to be heard. The legislature could not have intended any such ridiculous result, and if it did the procedure would be clearly unconstitutional, as depriving the claimant of his property without due process of law.... As it appears from the record before us that the claimant was not notified of the appeal to the circuit court, and that he was not notified of the appeal, from that court to this, it follows that neither the circuit court nor this court ever acquired jurisdiction of the claimant’s person, or had authority to hear and determine his [rights].
(Emphasis supplied).
While Lyman County involved a claim for payment for services rendered, the rule is the same when the appeal involves a successful application for a zoning change. See, e.g., Spanish Wells Prop. Owners v. Bd. of Adj., 295 S.C. 67, 367 S.E.2d 160, 161 (1988); Schroeder v. Burleigh Cty. Bd. of Com’rs., 252 N.W.2d 893, 897 (N.D.1977) (“a successful applicant for a zoning change should be joined as a party to an appeal from that decision by an aggrieved person, and any judgment rendered on appeal in his absence is invalid.”) And, because the time for appeal has now expired, Alexander cannot be properly joined, and this action must be dismissed. Veradale Valley, Etc. v. Board of Cty. Com’rs., 22 Wash.App. 229, 588 P.2d 750 (1978); Westlund v. Carter, 193 Colo. 129, 565 P.2d 920 (1977); Hidden Lake Development Co. v. District Court, 183 Colo. 168, 515 P.2d 632 (1973).
Dated this 4th day of September, 1996.