Barnum v. Chamberlain Land & Loan Co.

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

OPINION TEXT STARTS HERE

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.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 order or decision finally determining the rights of the parties, or some of them, an order granting or refusing a new trial, an order sustaining or overruling a demurrer, allowing or refusing to allow an amendment to a pleading, striking out a pleading or a portion thereof, refusing a continuance, an order made upon ex parte application and an order or decision made in the absence of a party, are deemed to have been excepted to.”

The Codes of Wisconsin and North Dakota contain sections identical with our section 463, but it is held that these provisions-

“have no application to rulings and determinations of the court which do not become a part of the record proper. If they are of such a character that it is necessary to settle a bill of exceptions in order to make them of...

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7 cases
  • Barnum v. Chamberlain Land & Loan Co.
    • United States
    • Supreme Court of South Dakota
    • June 1, 1914
    ...147 N.W. 647 34 S.D. 137 BARNUM et al. v. CHAMBERLAIN LAND & LOAN CO. No. 3501.Supreme Court of South DakotaJune 1, 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......
  • Bailey v. Security Ins. Co.
    • United States
    • Supreme Court of Oregon
    • March 15, 1921
    ...... property, together with evidence of the ownership of the land. upon which the building was situate, also as to. plaintiff's ... the court, in the case of Barnum et al. v. Chamberlain. Land & Loan Co., 34 S.D. 137, 147 N.W. 647, ......
  • Sprowls v. Sprowls
    • United States
    • Supreme Court of South Dakota
    • June 8, 1914
    ...... mortgage upon the undivided individual interest of said Smith in said land to secure an individual debt of Smith to respondent Sprowls. When the note ......
  • Sprowls v. Sprowls
    • United States
    • Supreme Court of South Dakota
    • June 8, 1914
    ...... undivided individual interest of said Smith in said land to. secure an individual debt of Smith to respondent Sprowls. When the ......
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