Barnum v. Chamberlain Land & Loan Co.
Citation | 147 N.W. 647,34 S.D. 137 |
Decision Date | 01 June 1914 |
Docket Number | No. 3501.,3501. |
Court | Supreme Court of South Dakota |
Parties | BARNUM 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.
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 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-
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Bailey v. Security Ins. Co.
... ... property, together with evidence of the ownership of the land ... upon which the building was situate, also as to ... the court, in the case of Barnum et al. v. Chamberlain ... Land & Loan Co., 34 S.D. 137, 147 N.W ... ...
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Sprowls v. Sprowls
... ... undivided individual interest of said Smith in said land to ... secure an individual debt of Smith to respondent Sprowls ... ...
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Inlagen v. Town of Gary
...but no exception 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 assignme......
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Rodman v. Rodman
...the court denying 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 thi......