Sherin v. Eastwood

• Decision Date: 24 June 1913
• Citation: 142 N.W. 176,32 S.D. 95
• Parties: SHERIN v. EASTWOOD et al.
• Court: South Dakota Supreme Court

142 N.W. 176

32 S.D. 95

SHERIN v. EASTWOOD et al.

Supreme Court of South Dakota

June 24, 1913

Appeal from Circuit Court, Codington County; Carl G. Sherwood Judge.

Action by A. Sherin against George H. Eastwood and another. Judgment for plaintiff, and defendants appeal. The plaintiff respondent moved to strike from the abstract all matters not a part of the judgment roll proper, and defendants appellants procured an order to show cause why the case should not be returned to the trial court for completion of the record. Order to show cause dismissed, and motion to strike out sustained.

See also, 142 N.W. 179.

George H. Marquis, Wilbur S. Glass, and Walter H. Shurtleff, all of Watertown, for appellants.

Sherin & Sherin, of Watertown, for respondent.

SMITH J.

Appeal from circuit court of Codington county. Action for libel. Jury trial. Verdict for plaintiff for $125 damages. Defendants appeal from the judgment and order overruling motion for new trial. The notice of intention to move for a new trial recites "that said motion will be based upon the minutes of the court, the instructions of the judge of this court given to the jury on the trial of the above-entitled action, and upon all of the records and files in said action." No statement of the case, bill of exceptions, or transcript of the record required by chapter 15, Laws 1911, has ever been settled, certified, or filed. The notice of intention to move for a new trial recites that the motion will be based upon insufficiency of evidence to sustain the verdict, and errors of law occurring at the trial in giving certain instructions and refusal of instructions requested by appellants. Appellants' abstract or statement of facts has printed therein certain purported instructions given the jury, and requests for instructions refused, but does not purport to contain any of the evidence at the trial. On March 8, 1913, respondent served notice of a motion returnable on motion day of the April term to strike from appellants' abstract all matters not a part of the judgment roll proper, on the ground that no bill of exceptions or statement of the case has ever been settled and that such matter cannot properly be made a part of the abstract. By written stipulation of counsel, dated March 27, and an order thereon, the hearing of the motion was continued until May 8, 1913, the date assigned for oral argument of the appeal. At that time appellants appeared by new additional counsel, and at the conclusion of the hearing on the motion asked and were granted 10 days within which to make application for an order to show cause why the case should not be returned to the trial court for completion of a record upon which the alleged errors might be reviewed in this court. This order was made returnable on June 6, 1913, and is the matter now before us for consideration.

The original motion by respondent also involved an application to dismiss the appeal on the ground of insufficiency of the appeal bond. The order to show cause now under consideration also contemplated the correction of the appeal bond if found insufficient. But in the view we take this part of the application requires no further consideration. The order to show cause is founded upon affidavits of defendants Geo. H and Lydia R. Eastwood and of Hon. Geo. H. Marquis, additional counsel now appearing for appellants. The affidavits of the defendants Eastwood are to the effect that upon the trial of said action in the lower court, and in the preparation of the record on appeal they employed a firm of reputable attorneys of high standing and long practice in this state; that they relied upon the knowledge, skill, and fidelity of said attorneys, and believed in good faith that the record on appeal had been properly prepared; that affiants acted promptly and without delay and in good faith in taking said appeal; that as the time drew near for the argument upon said appeal they became anxious to know which of the firm of attorneys employed by them would appear upon such argument; that, because of answers to their inquiries, appellants were left in doubt as to whether either of said attorney would appear before this court, and, being convinced that they could not depend upon either of said attorneys to present an oral argument, appellants employed Hon. Geo. H. Marquis to appear and make such oral argument; that their said last-named counsel immediately procured the abstract and briefs upon appeal, and upon examination thereof advised affiants that the record upon appeal appeared to be incomplete, in that no statement of the case or bill of exceptions had been settled by the trial court, and none transmitted to the appellate court, and that a motion was pending to strike out portions of appellants' abstract because of the absence of such settled record; that said George H. Marquis thereafter appeared upon the hearing of said motion, and upon his return informed affiants that no proper record existed and that he would be obliged to ask this court for an opportunity to complete the record by obtaining a settlement of a proper bill of exceptions or statement; and that he had been given 10 days within which to make such application, and if upon such application it appeared that due diligence had been shown, such relief might be granted. These affidavits also contain certain statements as to the appeal bond which need not be referred to. The affidavit of Hon. Geo. H. Marquis so far as it relates to matters affecting due diligence in the preparation of the appeal record contains matters which are merely hearsay, but alleges his belief to be that appellants' counsel who prepared the record on appeal fell into the mistake of supposing that errors of law in the giving or refusing of instructions might be reviewed upon a motion for a new trial based upon the minutes of the court, without the settlement of a statement of the case, bill of exceptions, or other record on appeal. Upon the return day, respondent filed affidavits in opposition to the order to show cause, from which it appears that the original motion to strike certain parts of appellants' abstract upon the ground that no bill of exceptions, statement of the case, or other record had ever been settled by the trial court was served on appellants' counsel on March 8, 1913, and that the same motion and objections to said record were embraced in respondent's brief served on appellants' counsel on March 11, 1913. Said affidavits...