Aultman, Miller & Co. v. Becker

• Decision Date: 16 June 1897
• Citation: 71 N.W. 753,10 S.D. 58
• Court: South Dakota Supreme Court
• Parties: AULTMAN, MILLER & CO. v. BECKER.

10 S.D. 58

71 N.W. 753

AULTMAN, MILLER & CO.

v.BECKER.

Supreme Court of South Dakota.

June 16, 1897.

Appeal from circuit court, McPherson county; Loring E. Gaffy, Judge.

Action by Aultman, Miller & Co. against Phillip Becker. Judgment for defendant, and plaintiff appeals. Affirmed.Chas. Mitschrich and Williams & Williamson, for appellant. James M. Brown, for respondent.

HANEY, J.

This is an action to recover possession of specific personal property. It was commenced by service of a summons and the usual papers required by the provisional remedy of claim and delivery. Defendant, within 30 days thereafter, caused notice of appearance to be given, and by attorney demanded in writing a copy of the complaint. None was served within the statutory time, and defendant, upon due notice, moved the court for an order dismissing the action at plaintiff's costs, and for a return to him of the property taken. This motion was made on an affidavit of defendant's attorney and the papers served upon defendant. Plaintiff appeared by attorney in opposition thereto and read an affidavit of the sheriff and the sheriff's return on the affidavit in claim and delivery. Defendant's motion was sustained, and judgment rendered wherein it is ordered and adjudged: “That this action be, and is hereby, dismissed; that the property taken from the defendant in this action be returned to him by the plaintiff, or the value thereof in case a return cannot be had; and that defendant have judgment against said plaintiff for the costs of this action, to be taxed by the clerk of this court upon proper notice.” Subsequently plaintiff moved the court to vacate this judgment, upon the hearing of which motion affidavits were read by the respective parties. The motion was denied. Plaintiff appeals from the judgment.

Why the motion to vacate was made is not apparent. As we understand the abstracts, it presented no reason for vacating the judgment which could not have been offered in opposing the motion for judgment. It is not claimed that plaintiff was taken by surprise, or prevented from presenting all the objections he desired to upon the hearing of the first motion. It is difficult to discover any occasion or authority for the second motion, but the court is not called upon to consider it. When the appeal is from the judgment only, errors occurring after judgment are not presented for review. Hawkins v. Hubbard, 2 S. D. 631, 51 N. W. 774;Manufacturing Co. v. Galloway, 5 S....