Bailey v. Scott
| Decision Date | 03 December 1890 |
| Parties | BAILEY Plaintiff/Appellant, v. SCOTT, Defendant/Respondent. |
| Court | South Dakota Supreme Court |
Appeal from District Court, Pennington County, SD
William T. Coad
Attorney for appellant.
Day, Bangs, and Haynie
Attorneys for respondent.
Submitted April 22,1890. Opinion filed Dec. 3, 1890
This is an appeal from an order of the district court of Pennington county. The affidavit upon which the order was made presents a statement of facts in detail, which may be fairly summarized as follows: In November, 1887, in an action against respondent, the appellant had judgment of foreclosure and sale of certain mortgaged premises in Pennington county, in pursuance of which the premises were sold by the sheriff of said county on the 16th day of January, 1888, to said appellant. A certificate of sale was made to him, and on the 7th day of March following he assigned the same to James K. O. Sherwood. On the 1st day of November following, on the affidavit and motion of William T. Coad, attorney for appellant, in such foreclosure proceedings, and without notice to respondent, an order was made by the court amending the judgment by increasing the amount thereof, on account of an error in the computation of interest when the judgment was taken, and vacating and setting aside the sale, the order confirming the same, and the sheriff’s certificate of sale. That on the 15th day of January, 1889, being within one year from the date of the sale, respondent went to the office of the clerk of said court for the purpose of ascertaining the exact amount required to redeem said premises from said sale. That he was then and there prepared and intended to so redeem, but was shown the said order of the court setting aside said sale, and, relying thereon, made no further effort at that time to make such redemption. On the 29th day of January. 1889, the court made a further order. without notice to respondent, (but upon whose application, or upon what papers, the record does not disclose,) vacating and setting aside said order of November 1, 1888, of which respondent had neither notice nor knowledge until the 21st day of February, 1889. On the 30th day of January, 1889, the sheriff made his deed of the mortgaged premises to said Sherwood as assignee as aforesaid of the certificate of sale. That, shortly thereafter, respondent gave notice to appellant that he would move the court to vacate said last-mentioned order, upon the hearing of which the same was granted, and an order made setting aside and vacating the order of January 29, 1889, and this is the order appealed from.
The respondent moved to dismiss the appeal for the reasons (1) that said order is not an appealable order; and (2) that there is no bill of exceptions in the case. This motion was presented and submitted with the briefs on the merits, and must be first disposed of. The order is clearly appealable under subdivision 2, § 5236, Comp. Laws, as affecting a substantial right, upon a summary application after judgment. The design of this provision was very evidently to secure to an aggrieved party a review of such final orders, affecting substantial rights, as could riot be considered on an appeal from the judgment itself; and this is manifestly such an order. The order, made long subsequently to the rendition of the judgment, would riot come up for review on appeal from the judgment, and so the statute allows an independent appeal as the only safe and convenient method for its review.
It is further urged in support of the motion to dismiss that this court cannot review the question sought to be presented, because no record of the proceedings below is made and brought up by bill of exceptions. This is correct, unless Section 5217, Comp. Laws, has obviated the necessity for a bill of exceptions in cases like this. That section is as follows:
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