(dissenting).
Although SDCL 15-26-2 does not by its terms require that the service of the notice of the filing of an order must be made by the attorney for the prevailing party, such a requirement has long been assumed by this court. In Labidee v. City of Pierre, 43 S.D. 31, 177 N.W. 499, this court said:
The object of the above statute [SDCL 15-26-2] is two-fold. It gives to a party the power to set running the time after which his adversary may not appeal. Braun v. Thuet, 42 S.D. 491, 174 N.W. .807. But it also assures each party that the statutory period of time within which he may appeal does not commence to run until his adversary has given such notice. 43 S.D. at 34, 177 N.W. at 500.
The fact that appellant’s counsel admitted that he received the certified copy mailed by the clerk is irrelevant, for under Western Electric Co. v. Dorman, 47 S.D. 195, 197 N.W. 227, knowledge of the existence of a filed order does not start the running of the appeal in the absence of written notice to appellant of the filing of the order.
Simply stated, our statute does not contemplate that the trial court should become involved in the process of giving notice of the entry of its orders or judgments. That duty falls upon counsel for the prevailing party. Although in any given case, and perhaps especially in a case such as the one under consideration here, a trial judge might have a special interest in seeing that counsel for the prevailing party promptly notifies the adverse party of the filing of an order to the end that long-protracted litigation might finally be brought to conclusion, the responsibility for triggering the appellate process rests under our rules with counsel for the prevailing party.
I would deny the motion to dismiss the appeal and would consider the appeal on the merits of the record, such as it is.
I am authorized to state that Justice PORTER joins in this dissent.