Bates v. Loffler
| Decision Date | 14 November 1911 |
| Citation | 133 N.W. 283,28 S.D. 228 |
| Parties | BATES v. LOFFLER et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Pennington County; Levi McGee, Judge.
Action by Albert E. Bates against Gilbert D. Loffler and others. From a judgment for plaintiff, defendants appeal. Modified and affirmed.
John Holman, Joseph Janousek, and Harry Kunkle, for appellants.
Charles W. Brown and Chas. E. De Land, for respondent.
The plaintiff herein brought action seeking to quiet title in some 1,600 acres of land situate in Pennington county, S.D. His complaint is the short form prescribed by statute. The defendants Gamble, Tripp, and Ohlman joined in an answer, and pleaded an interest in the said land under and by virtue of a contract entered into by themselves and their codefendant whereby the defendants contracted to purchase, and plaintiff to sell, the said land in question. The defendants, after pleading the contract, allege the payment of a large sum of money thereunder, and that the further performance of the contract upon their part was excused by the plaintiff's failure to perform his covenant contained in said contract namely, to clear the title to said land from incumbrances and clouds thereon. Said defendants asked for the recovery of the money paid by them on the contract, and for damages suffered by them in examination of title to said land. The defendant Loffler, by his separate answer, pleaded facts practically the same as his codefendants, and, in addition, pleaded certain damages through plaintiff's failure to carry out the contract. The plaintiff, replying to said answers admitted the execution of contract and the payment by defendants of a certain sum thereunder, though not the amount claimed by defendants. Under the contract, plaintiff had agreed to furnish abstracts showing a clear and unincumbered title to the lands; and he pleaded that said contract was afterwards modified, so that he was allowed to pay off a certain mortgage standing against said land from money to be received by him on the first and second deferred payments to be made under said contract. Plaintiff alleged that, excepting the showing of such mortgage incumbrance upon the abstracts, he had in all ways fulfilled the contract, and that defendants had wholly failed to live up to said contract, and that defendants had repudiated said contract and attempted to rescind same. Plaintiff in his reply said that he tendered and brought into court, for the purpose of delivery to the defendants, a good and sufficient warranty deed executed by himself, and conveying said land to defendants as well as abstracts showing perfect title in plaintiff with the exception of the mortgage above referred to. Plaintiff asked that a short time be given defendants within which to make the further payments provided by the contract, and that the court direct that the mortgage incumbrance be paid out of the money so paid into court by defendants, or, if the court so elected, plaintiff offered that he would immediately pay such incumbrance from his other funds. The cause was tried to the court without a jury. Findings of fact and conclusions of law were entered in favor of plaintiff. Upon these findings and conclusions a decree was entered quieting title to the lands in the plaintiff with judgment for costs against the defendants and without any provision for repayment to defendants of any part of the purchase money paid by them. The defendants moved for a new trial, which motion having been denied, they have appealed to this court, from the judgment of the trial court and from the order denying a new trial.
The respondent in his brief filed in this court under date of October 10, 1910, noted the fact that he intended later to move to strike from the record the purported bill of exceptions filed herein; but it was not until immediately preceding the April, 1911, term that respondent did make any such motion. Such motion was made returnable on the first day of such April term. In said motion the respondent prayed "for an order and decision that the alleged bill of exceptions, settled and allowed by the court, and transmitted to this court, be stricken from the record; that the said case and this appeal be not heard upon the merits upon the records as here and now presented for want of necessary and material evidence and exhibits omitted from said alleged bill; that the appellant's assignments of error be held to be insufficient to present any question to this court for review; and that the judgment of the court below be in all things affirmed, and for such other and further relief in the premises as may be just and proper."
As a ground for striking the bill from the records, respondent contends that the trial court lost jurisdiction to settle the bill, owing to delays and the court's failure to grant extensions of time for settling bill. While there was great delay in the settlement of the bill, we think there was no abuse of discretion on the part of the trial court in the settling of said bill, and that it never lost jurisdiction so to do. If there was "necessary and material evidence" omitted from the alleged bill of exceptions, the respondent has certainly mistaken his remedy, if he thinks such error should be corrected through a motion to strike the bill, instead of some proceeding looking to the perfecting of such bill. The insufficiency of assignments cannot be presented to this court upon such a motion, and, moreover, respondent should certainly recognize the fact that, even should the bill of exceptions be fatally defective or be stricken from the record, this court would not be warranted in dismissing the appeal and affirming the judgment of the trial court, as there might be questions, to be considered by this court upon an appeal, based upon other parts of the record than that found in the bill of exceptions. We do not believe that there is anything that would justify a refusal upon our part to recognize the bill of exceptions now on file herein, unsatisfactory though it is in many respects.
The respondent has devoted a large part of his brief to a discussion of matters of practice including such motion to strike out the bill of exceptions, and in such brief he suggest that, in case the court should rule against him upon said questions of practice, he would desire further time to present a brief upon the merits of the cause. He refers to the fact that in a prior cause, wherein his present counsel moved that a bill of exceptions be stricken from the record, this court issued an order extending the time for filing a brief upon the merits of the cause until after the decision upon the motion to strike the bill of exceptions. If respondent, before filing any brief in this court, had attacked the bill of exceptions by proper motion, and, owing to the pendency of such motion, had asked for an extension of time within which to file such brief, his request would undoubtedly have been granted; but, instead of so doing, he neglects to urge his motion until some six months after the time has expired, during which, under the rules of this court, his brief should be filed in this court. For this court to now allow respondent time within which to prepare and file a brief which he should have prepared months ago would certainly be a rank injustice to these appellants, and would establish a precedent which, if followed, would result in those delays which this court is earnestly endeavoring to avoid. We are inclined, in view of the merits of this case as such merits clearly appear upon the record herein, to think that respondent is relying, and must of necessity solely rely, upon his motion to strike out the bill of exceptions and upon certain other questions of practice discussed in his brief, realizing full well that upon the merits he can have no hope of sustaining the judgment of the trial court.
Respondent has questioned the sufficiency of the assignments of error, and of the specifications of the particulars wherein the evidence is claimed insufficient to sustain certain findings of the trial court, as such assignments and specifications appear in the bill of exceptions used upon motions for new trial and in the abstract on file on this court, and it must be conceded that such assignments and specifications are not as full and clear as good practice might require, but yet we think the same sufficient to fairly present for our consideration certain alleged errors of the trial court. Disregarding such purported findings of fact as are in fact mere conclusions of law, the record shows that the trial court found in brief as follows:
That plaintiff was the fee owner of the land at all times hereinafter mentioned; that the defendants claim an interest therein adverse to plaintiff; that on or about July 30, 1907, the parties hereto entered into the following contract:
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