Jones Lumber & Mercantile Co. v. Faris
| Decision Date | 26 April 1894 |
| Court | South Dakota Supreme Court |
| Parties | JONES LUMBER & MERCANTILE CO. v. FARIS. |
1. Where appellant's abstract contains matter, and upon it presents questions for review, which matter could only be presented by a bill of exceptions or statement, and which questions could only properly be presented after a motion for a new trial in the court below, and respondent files no additional abstract denying that a bill of exceptions or statement was settled or motion for new trial made, the abstract will be considered in this court as claiming that a bill or statement was settled, and motion for new trial made.
2. In such case a motion to strike out such portions of the abstract as purport to show the proceedings of the trial, on the ground that the abstract does not specifically state that a statement or bill was duly settled and a motion for new trial made, will be denied.
3. Errors of law occurring at the trial, and duly excepted to, may be reviewed in this court when presented by a proper bill or statement, on appeal from the judgment, although no motion for a new trial was made in the court below.
Appeal from circuit court, Edmunds county; H. G. Fuller, Judge.
Action by the Jones Lumber & Mercantile Company against Robert D. Faris. Judgment for plaintiff, and defendant appeals. Motion to strike out portions of appellant's abstract. Denied.
L. W. Crofoot and Dudley P. Wayne, for appellant. C. H. Barron and Gaffy & Gunderson, for respondent.
This case is now before us on respondent's motion to strike from appellant's abstract all that purports to show the proceedings before the trial court, upon the following grounds:
A motion for a new trial is not a prerequisite to an appeal, so that it is not jurisdictional. Where there is no such motion, this court will not review the question of the sufficiency of the evidence to support the verdict. Pierce v. Manning (S. D.) 51 N. W. 332;Evenson v. Webster (S. D.) 53 N. W. 747. While it is a better and more correct practice for the abstract to show specifically the fact that a motion was so made and denied, still, where the appellant, by the matters stated in his abstract, and by his assignment of errors, presents for review questions which could not properly be presented unless such motion had been made, and the respondent does not dispute the fact that a motion was actually made and denied by the trial court, this court will consider appellant's abstract as claiming that it was made. If respondent desires to raise the question that no motion was in fact made, he should do it by an additional abstract. A motion to strike out portions of appellant's abstract, on the ground that it is not specifically stated therein that a motion for new trial was made and denied, will be refused.
The motion, so far as it rests on the second ground, will be disposed of on the same theory, with the further suggestion that in this case that portion of the abstract which it is sought to have eliminated is distinctly headed “Bill of Exceptions.” While it is not categorically alleged that a bill was duly settled, or that what is stated in the abstract is taken from such a bill, such is the plain intendment, and it will be considered to be so claimed by the abstract. If respondent desires to make the point that no bill was settled, he should do so by an additional abstract. Thompson v. Silvers, 59 Iowa, 670, 13 N. W. 854, fully supports these conclusions.
The third ground upon which this motion is based is that, the appeal not being from an order denying a motion for a new...
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