Boettcher v. Thompson
| Decision Date | 19 December 1906 |
| Citation | 110 N.W. 108,21 S.D. 169 |
| Parties | BOETTCHER v. THOMPSON et ux. |
| Court | South Dakota Supreme Court |
On motion for rehearing. Former decision adhered to.
For former opinion, see 95 N.W. 874, 17 S.D. 177.
The judgment of the circuit court in this action was affirmed by a former decision, for the reason that the only material alleged errors discussed in appellant's brief related to the sufficiency of the evidence, and its sufficiency could not be reviewed, as the appeal was from the judgment and an order made after judgment denying the plaintiff's application for a new trial; such motion having been made on a bill of exceptions or a statement of the case which contained no specifications of the particulars wherein the evidence was alleged to be insufficient. Boettcher v Thompson, 17 S.D. 177, 95 N.W. 874. A rehearing having been granted, the original record, to which attention was directed by an additional abstract, has been re-examined to ascertain whether any error was made as to what such record in fact disclosed; there being no doubt as to the correctness of the legal conclusions announced in our former decision.
The portion of the record in controversy should be termed a statement of the case. Juckett v Fargo Mer. Co., 18 S.D. 347, 100 N.W. 742. It is expressly stated therein that judgment was rendered in favor of the defendant and against the plaintiff on January 23 1901. That judgment was entered on January 29, 1901. And "that thereafter, and within the time as allowed and extended by the court, the plaintiff made and served upon the defendants' attorneys his intention to move for a new trial, specifying therein the following statutory grounds for said motion: (1) Insufficiency of the evidence to justify the findings and decision of the court, and that said findings and decision are against the law; (2) that the findings are insufficient to support the judgment; (3) error at law occurring at the trial excepted to by said plaintiff-and specifying therein that said motion for a new trial would be made upon a bill of exceptions to be thereafter settled and upon all the records and files in said cause." It is therefore conclusively established that the motion for a new trial was made on a bill of exceptions, or, more accurately speaking, on a statement of the case. "The rule is too familiar to discuss that this court takes the record as it is made and certified by the trial court as a verity." Wright v. Sherman, 3 S. D. 367, 53 N.W. 425. Even though the recitals in a judgment are presumptively true, an affirmative showing in the bill of exceptions that they are not true must prevail over the presumption. Schlachter v. Church (S. D.) 105 N.W. 279. Then, under the rule prescribed by the statute, and followed by this court in numerous decisions, the sufficiency of the evidence to sustain the decision in this action could not be reviewed, if the statement of the case did not contain proper specifications of the particulars wherein such evidence was alleged to be insufficient. Rev. Code Civ. Proc. § 303, subd. 3; Pierce v. Manning, 2 S. D. 517, 51 N.W. 332; Chandler v. Kennedy, 8 S. D. 56, 65 N.W. 439; Nelson v. Jordeth, 15 S.D. 46, 87 N.W. 140; Johnston L. M. Co. v. Case, 13 S.D. 28, 82 N.W. 90; Wenke v. Hall, 17 S.D. 305, 96 N.W. 103; Clark v. Mitchell, 17 S.D. 431, 97 N.W. 358.
The statement contains nothing with reference to the matter under discussion, except the following: ...
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