Barnum v. Chamberlain Land & Loan Co., No. 3501.

CourtSupreme Court of South Dakota
Writing for the CourtPOLLEY
Citation147 N.W. 647,34 S.D. 137
Docket NumberNo. 3501.
Decision Date01 June 1914
PartiesBARNUM et al. v. CHAMBERLAIN LAND & LOAN CO.

34 S.D. 137
147 N.W. 647

BARNUM et al.
v.
CHAMBERLAIN LAND & LOAN CO.

No. 3501.

Supreme Court of South Dakota.

June 1, 1914.


Appeal from Circuit Court, Tripp County; Wm. Williamson, Judge.

Action by E. G. Barnum and another, as copartners, against the Chamberlain Land & Loan Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

[147 N.W. 647]

O. D. Olmstead, of Winner, E. O. Patterson, of Dallas, and W. J. Hooper, of Gregory, for appellants.

Doherty & Talbott, of Winner, and Brown & Brown, of Chamberlain, for respondent.


POLLEY, J.

Action to recover balance claimed to be due as commission on sale of real property. At the close of appellant's evidence, the court directed a verdict for defendant. This action on the part of the court is assigned as error, but appellant failed to take any exception thereto at the trial, and it is contended by respondent that, because of the absence of such exception, the said error, if any, is not reviewable by this court, and, in support of such contention, cites the following cases: Peterson v. Siglinger, 3 S. D. 255, 52 N. W. 1062;Beckwith v. Dierks Lumber & Coal Co., 75 Neb. 349, 106 N. W. 442;Warner v. Sohn, 85 Neb. 571, 123 N. W. 1054;De Lendrecie v. Peck, 1 N. D. 422, 48 N. W. 342;McNab v. Northern P. R. Co., 12 N. D. 568, 98 N. W. 353;Kephart v. Continental Casualty Co., 17 N. D. 380, 116 N. W. 349;Holum v. Chicago, M. & St. P. Ry. Co., 80 Wis. 299, 50 N. W. 99;Klotz v. Milwaukee E. R. & L. Co., 144 Wis. 384, 129 N. W. 524;Beebe v. Minneapolis, St. P. & S. S. M. Ry. Co., 137 Wis. 269, 118 N. W. 808. Section 463, Code Civ. Proc., is as follows:

Section 463: “Upon an appeal from a judgment, as well as upon a writ of error, the Supreme Court may review any intermediate order or determination of the court below which involves the merits and necessarily affects the judgment, appearing upon the record transmitted or returned from the circuit court, whether the same were excepted to or not; nor shall it be necessary in any case to take any exception or settle any bill of exceptions to enable the Supreme Court to review any alleged error which would, without a bill of exceptions, appear upon the face of the record. Any questions of fact or of law, decided upon trials by the court or by referee, may be reviewed when exceptions to the findings of fact have been duly taken by either party and returned.”

Section 293: “The verdict of the jury, the final decision in an action or proceeding, an interlocutory...

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4 practice notes
  • Bailey v. Security Ins. Co.
    • United States
    • Supreme Court of Oregon
    • March 15, 1921
    ...appeal without the necessity of saving an exception at the trial, the court, in the case of Barnum et al. v. Chamberlain Land & Loan Co., 34 S.D. 137, 147 N.W. 647, Ann. Cas. 1917A, 848, wrote that: "A defendant who admitted the making of oral void under the statute of frauds, and who relie......
  • Inlagen v. Town of Gary, No. 3399.
    • United States
    • Supreme Court of South Dakota
    • June 22, 1914
    ...was taken to either of such rulings, and therefore they are not reviewable by this court. Barnum et al. v. Chamberlain L. & L. Co., 147 N. W. 647, and cases there cited. [3] ‘The eighth assignment is based upon the denial of appellant's motion for a new trial. This assignment brings up the ......
  • Sprowls v. Sprowls, No. 3556.
    • United States
    • Supreme Court of South Dakota
    • June 8, 1914
    ...H. Sprowls; that such interest be sold and foreclosed to satisfy appellant's said claim thereon, the balance, if any, received upon such [147 N.W. 647]foreclosure sale, after payment of appellant's claim, interest and costs, to be applied in payment of the mortgage given A. H. Sprowls by...
  • Rodman v. Rodman, No. 5773.
    • United States
    • Supreme Court of South Dakota
    • January 16, 1928
    ...the motion to set aside the supplemental decree, and therefore that order cannot be reviewed. Barnum v. Chamberlain Land & Loan Co., 34 S. D. 137, 147 N. W. 647, Ann. Cas. 1917A, 848;Zimmerman v. Corson County, 39 S. D. 167, 163 N. W. 711. [2] There is no record before this court under whic......
4 cases
  • Bailey v. Security Ins. Co.
    • United States
    • Supreme Court of Oregon
    • March 15, 1921
    ...appeal without the necessity of saving an exception at the trial, the court, in the case of Barnum et al. v. Chamberlain Land & Loan Co., 34 S.D. 137, 147 N.W. 647, Ann. Cas. 1917A, 848, wrote that: "A defendant who admitted the making of oral void under the statute of frauds, and who relie......
  • Inlagen v. Town of Gary, No. 3399.
    • United States
    • Supreme Court of South Dakota
    • June 22, 1914
    ...was taken to either of such rulings, and therefore they are not reviewable by this court. Barnum et al. v. Chamberlain L. & L. Co., 147 N. W. 647, and cases there cited. [3] ‘The eighth assignment is based upon the denial of appellant's motion for a new trial. This assignment brings up the ......
  • Sprowls v. Sprowls, No. 3556.
    • United States
    • Supreme Court of South Dakota
    • June 8, 1914
    ...H. Sprowls; that such interest be sold and foreclosed to satisfy appellant's said claim thereon, the balance, if any, received upon such [147 N.W. 647]foreclosure sale, after payment of appellant's claim, interest and costs, to be applied in payment of the mortgage given A. H. Sprowls by...
  • Rodman v. Rodman, No. 5773.
    • United States
    • Supreme Court of South Dakota
    • January 16, 1928
    ...the motion to set aside the supplemental decree, and therefore that order cannot be reviewed. Barnum v. Chamberlain Land & Loan Co., 34 S. D. 137, 147 N. W. 647, Ann. Cas. 1917A, 848;Zimmerman v. Corson County, 39 S. D. 167, 163 N. W. 711. [2] There is no record before this court under whic......

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