Borgen v. Auguski

• Decision Date: 10 February 1927
• Docket Number: 5651
• Parties: O. BORGEN, Plaintiff and appellant, v. A. AUGUSKI, aka A. Augustouski, Defendant. A. R. Crooks and Crooks State Bank, Garnishees.
• Court: South Dakota Supreme Court

51 S.D. 65

212 N.W. 47

O. BORGEN, Plaintiff and appellant, v. A. AUGUSKI, aka A. Augustouski,

Defendant.

A. R. Crooks and Crooks State Bank,

Garnishees.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. John T. Medin, Judge

File No. 5651—Affirmed

Waggoner & Stordahl, Sioux Falls,SD

Attorneys for Appellant.

Boyce, Warren & Fairbank, Sioux Falls, SD

Attorneys for Respondents.

Opinion filed February 10, 1927

MORIARTY, C.

The appellant sued one Auguski for money due as rentals for land owned by appellant and occupied by Auguski.

During the years 1920 and 1921 Auguski occupied the land under a written lease, which contained provisions constituting a chattel mortgage on the crops of 1920 and 1921. The evidence shows that it was agreed that Auguski should farm the land during 1922 upon the same terms as were contained in the written lease. This agreement was entirely oral, and there was nothing that would constitute a mortgage on the 1922 crop, as against third parties. The Crooks State Bank held Auguski’s notes secured by chattel mortgages covering many items of farm property and including also the 1922 crops.

In January, 1923, an agreement was made between Auguski and the garnishee defendant A. R. Crooks to the effect that a public sale of practically all of Auguski’s chattels should be made, Crooks to clerk the sale, to apply the proceeds upon the notes held by the bank, and to pay the surplus, if any, to Auguski. The sale was held, pursuant to this agreement, on February 6, 1923. And at this sale grain from the 1922 crop was sold to the value of $273.20, and other property not covered by the bank’s mortgages was sold to the value of $419.57. The entire proceeds of the sale failed to satisfy the bank’s mortgage.

Crooks, who was the cashier of the bank, did the actual work of clerking the sale. On the day of sale, and after the sale was over, both the bank and Crooks were garnisheed in appellant’s suit against Auguski. Each of these garnishee defendants served and filed an affidavit, in statutory form, denying liability.

Appellant took issue upon these affidavits. Prior to the trial of these issues judgment was entered against Auguski.

Upon the trial as to the liability of the garnishees the trial court made findings in favor of the garnishees and entered judgment in accordance therewith.

The only question presented for the consideration of this court is whether the agreement made between...