(dissenting).
The majority and the parties fail to resolve the most fundamental issue presented in this appeal: What is a “judgment?” The followup question then, is whether Aune has such a judgment against B-Y. The majority’s discussions and arguments are premised on the erroneous “fact” that Aune had a valid judgment against B-Y upon which Tabor Plumbing could levy. Such a premise is not legally sound. Under our statutory scheme, as set forth below, it is clear that Aune did not have a judgment against B-Y upon which Tabor Plumbing could levy and which could be sold at a sheriffs sale. Therefore, I dissent.
The term “judgment” is today defined as “the final determination of the rights of the parties in an action or proceeding.” SDCL 15-6-54(a) (emphasis added).* This definition is dispositive of the issues presented. It is undisputed that B-Y appealed from a judgment in favor of Aune, that it filed a supersedeas bond and that its appeal was filed in accord with the appropriate appellate procedures. “An action is deemed to be pending from the time of its commencement until its final determination upon appeal[.]” SDCL 15-1-3 (emphasis added). Therefore, the action resulting in the judgment appealed from by B-Y was still pending at the time of the disputed execution, levy and sale. This Court affirmed the trial court’s judgment on December 5, 1990, in Aune v. B-Y Water Dist., 464 N.W.2d 1 (S.D.1990). Consequently, Aune had no judgment, within the statutory definition (SDCL 15 — 6—54(a)), until December 25, 1990, which is twenty days after this Court’s judgment finally determining the rights of the parties. Thus, on May 11, 1989, Aune possessed no judgment upon which Tabor could execute or upon which the Yankton County Sheriff could levy, nor did Aune possess a judgment which could be sold at public auction to B-Y Water District on June 26, 1989.
It is no answer for the majority writer to find an “anomalous result” in such an interpretation of the meaning and intent of the plain language of the definition of “judgment” to say that “[i]f there was no ‘judgment,’ there was no right of appeal and the purported appeal should have been dismissed instead of having been affirmed in Aune’s favor.” Majority Op. at 765. The right of appeal is specifically provided to one who has a judgment “from the circuit court[.]” SDCL 15-26A-3(1). Despite the use of the identical term “judgment,” the context of the relevant statutes requires that the circuit court’s “judgment” be different from a “judgment” which can be executed upon, levied against, or sold.
The latter use of the term “judgment” creates no options for the parties as it cannot be appealed and is a “final determination of the rights of the parties[.1” SDCL 15 — 6— 54(a). This “judgment” may be executed upon by the judgment creditor or levied against by third parties and sold. The former use of the term “judgment” creates at least two options for the parties to the action. First, the “judgment” of the circuit court may be treated as fulfilling a procedural requirement enabling an appeal. If this option is chosen, the party appealing has a further choice of whether or not to file a *767supersedeas bond to stay execution on the judgment. In the event this bond is properly filed, I respectfully suggest it is an “anomalous result” to interpret this bond as effectively allowing all the world to execute upon the judgment while at the same time preventing the judgment creditor, the party most interested in the judgment, from executing thereon. The second option available to the parties is to treat the circuit court’s judgment as a final determination of rights. In which case, the circuit court’s judgment becomes a “judgment” within the meaning of SDCL 15 — 6—54(a), in which case this “judgment” may also be executed upon by the judgment creditor or levied against by third parties and sold.
The majority’s reliance on Pendergast, 59 S.D. 135, 238 N.W. 344 (Pendergast II), is misplaced. While one can hardly dispute the majority’s recitation of the statements of law taken from that complex case, those statements are inapplicable here. That entire decision was premised upon the fact that NO supersedeas bond had been filed to stay execution of the circuit court’s judgment. Id., 59 S.D. at 142, 238 N.W. at 347. In the instant case, it is important to recall that such a bond HAS been filed to stay execution of the circuit court’s judgment.
Another distinction to be drawn is that the judgment against Muns was reversed by this court at Pendergast v. Muns, 54 S.D. 90, 222 N.W. 607 (1928) (Pendergast I). We affirmed the judgment against B-Y. The money used by the trial court to partially satisfy the judgment against Muns “was actually in the custody of the court, and there is no question but that the court had physical jurisdiction over the res.” Pendergast II, 59 S.D. at 143, 238 N.W. at 348. This stands in sharp contrast to the instant case, where the funds to satisfy the underlying judgment against Aune were not in existence. Finally, it is important to recall that we determined Muns had no rights in the underlying judgment, even though the judgment was taken in his name. Id. Again, that is not this case. Pendergast simply does not offer guidance to the resolution of whether Aune had a judgment against B-Y upon which Tabor Plumbing could levy and which could be sold at a sheriffs sale.
I would hold the execution, levy and sale of Aune’s B-Y “judgment” are nullities. The statutory meaning of “judgment” leads but to one conclusion: Aune held no judgment against B-Y which could be executed upon, levied against, or sold. The trial court erred in its conclusion that the filing of the super-sedeas bond did not stay the sale of Aune’s “judgment.” Summary judgment for B-Y should be reversed.
I am authorized to state that AMUNDSON, J., joins this dissent.
The parties and the majority writer refer the reader to Wentzel v. Huebner, 78 S.D. 471, 104 N.W.2d 476 (1960). The majority writer finds this case persuasive on page 763 and unpersuasive on page 765. This case is irrelevant to the question before us. It must be read in light of the fact that it was decided under facts which included no valid supersedeas bond and was decided under a markedly different statutory definition of "judgment.” That definition perforce affected that Court's interpretation of the meaning and effect of a supersedeas bond on a judgment or execution thereon. That meaning and effect is not applicable under today's substantially different definition of "judgment.''