Opinion
File No. 9653.
Opinion filed September 10, 1957
Appeal from Circuit Court, Pennington County; Hon. E.W. Christol, Judge.
Appeal dismissed.
James Clapp, and John C. Searle, Rapid City, for Defendant and Appellant.
Gunderson, Farrar Carrell, Rapid City, for Plaintiff and Respondent.
The defendant's motion for an order dismissing plaintiff's complaint on the ground that her exclusive remedy under the facts alleged in the complaint was by appeal from the decision of the defendant school board, as provided by SDC 15.2033 was denied by the trial court. The appeal is from the order of the court.
[1, 2] Such an order of the trial court denying a motion to dismiss is not appealable as a matter of right. Moore v. Hahn, 65 S.D. 284, 273 N.W. 377 and In re Swanson's Estate, 67 S.D. 371, 293 N.W. 361. It is an intermediate order. Hall v. City of Belle Fourche, 67 S.D. 435, 293 N.W. 631; SDC 33.0701(6). An appeal has not been allowed by this court. Cf. SDC 33.0704; and SDC 33.0706. Being of the view justice requires that decision should await a complete development of the facts at the trial, our order will be that the appeal be dismissed.
All the Judges concur.