Kulesa v. Department of Public Safety

278 N.W.2d 637 (1979)

James John KULESA, Petitioner and Appellant, v. DEPARTMENT OF PUBLIC SAFETY, State of South Dakota, Respondent.

No. 12547.

Supreme Court of South Dakota.

Argued April 23, 1979.

Decided May 10, 1979.

*638 Charles B. Kornmann, of Richardson, Groseclose, Kornmann & Wyly, Aberdeen, for petitioner and appellant.

Judith A. Atkinson, Asst. Atty. Gen., Pierre, for respondent; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

DUNN, Justice.

This is an appeal from a judgment providing for the revocation of Kulesa's driver's license for failure to submit to a chemical breath test under the Implied Consent Law. A jurisdictional question is raised regarding Kulesa's having failed to file his petition for appeal to the circuit court within the time allotted by statute. We dismiss the appeal.

Subsequent to his arrest for driving while intoxicated and to his refusal to submit to a chemical breath test, Kulesa was provided a hearing by the Department of Public Safety to determine whether his driver's license should be revoked. On April 17, 1975, the Department ordered that Kulesa's license be revoked for a period of one year and notified Kulesa of the revocation order. Kulesa did not file his petition for appeal with the circuit court until March 1, 1976. The circuit court granted the petition for appeal and rendered a judgment after conducting a trial de novo pursuant to SDCL 32-23-12 notwithstanding the fact that Kulesa requested a review of the administrative decision pursuant to SDCL 1-26-31.

Regardless of which avenue of appeal from the Department's decision is utilized, both SDCL 32-23-12 and SDCL 1-26-31 provide that a petition for appeal or notice of appeal must be filed with the circuit court within thirty days of receiving notice of the revocation or final decision of the administrative agency. In either case, the thirty-day prescription effectively fixes the time in which an appeal may be taken. The taking of an appeal within the time fixed for the purpose is jurisdictional in nature. Long v. Knight Construction Co., Inc., 1978, S.D., 262 N.W.2d 207; Madsen v. Preferred Painting Contractors, 1975, S.D., 233 N.W.2d 575; Federal Land Bank of Omaha v. LeMars Mutual Ins. Co., 1937, 65 S.D. 143, 272 N.W. 285; Furman v. Anderson, 1933, 61 S.D. 378, 249 N.W. 626. Because Kulesa's petition for appeal was not timely filed, the circuit court did not have jurisdiction, and therefore, we do not have jurisdiction.

The appeal is dismissed.

All the Justices concur.