Carroll v. Nisbet

• Decision Date: 17 March 1897
• Citation: 9 S.D. 497,70 N.W. 634
• Parties: CARROLL v. NISBET.
• Court: South Dakota Supreme Court

9 S.D. 497

70 N.W. 634

CARROLL

v.NISBET.

Supreme Court of South Dakota.

March 17, 1897.

Appeal from circuit court, Minnehaha county; Joseph W. Jones, Judge.

Action of claim and delivery by E. H. Carroll against W. C. Nisbet. There was judgment for defendant on a verdict directed by the trial judge, and plaintiff appeals. Affirmed.Robertson & Dougherty, for appellant. Joe Kirby and G. R. Krause, for respondent.

FULLER, J.

By virtue of a mortgage lien creating a special property in certain threshing machinery, consisting of an engine and separator, plaintiff commenced this action in claim and delivery to recover the immediate actual possession of said property in aid of a statutory foreclosure proceeding. Upon all the evidence introduced at the trial under the complaint and answer, which was a general denial, the court directed a verdict for the defendant; and this appeal is by plaintiff from a judgment accordingly entered, and from an order overruling a motion for a new trial.

As no question concerning the sufficiency of the evidence to sustain the verdict is presented, for the reason that the court's ruling in denying a motion for a new trial was not assigned as error, we must consider that point established, and confine our inquiry to alleged errors of law occurring at the trial, and duly excepted to and assigned. Pierce v. Manning, 2 S. D. 517, 51 N. W. 332;Manufacturing Co. v. Galloway, 5 S. D. 205, 58 N. W. 565. As the assignment of error relating to the ruling of the court upon the motion to direct a verdict presents a reviewable question of law, deducible from the facts before it, although the order denying a new trial is not complained of, we shall examine the evidence, and determine whether, as a matter of law, the verdict was properly directed. Mercantile Co. v. Faris, 5 S. D. 348, 58 N. W. 813;Banking Co. v. Kendall, 6 S. D. 543, 62 N. W. 377.

The contention is between mortgagees, and at the trial testimony was offered tending to prove the following facts, which, if essential and properly admitted in evidence, must, when viewed in the light above indicated, be regarded sufficient to sustain the verdict upon which respondent's judgment was entered: On the 12th day of August, 1895, the mortgage upon which appellant relies was duly executed and delivered, in Mercer county, Ill., and the mortgagors removed the property therein described from said county and state, with appellant's knowledge and consent, prior to the recording of said instrument, and with the express understanding between the parties that said property was to be shipped to Minnehaha county, S. D., by the mortgagors, where...