Chandler v. Kennedy
| Decision Date | 12 December 1895 |
| Citation | 65 N.W. 439,8 S.D. 56 |
| Parties | CHANDLER v. KENNEDY. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. As the statute allows parties to waive findings by the court, a waiver will be presumed, unless the fact of nonwaiver is shown by the record.
2. A bill of exceptions or statement on motion for a new trial used on appeal, must specify the particular grounds upon which the moving and appealing party will rely.
3. This being the express requirement of the statute, it is not sufficient that such specifications of errors of law, or particulars in which the evidence is insufficient, be contained in the notice of intention, or elsewhere, except when the motion for new trial is made upon the minutes of the court.
4. Section 1, c. 16, Laws 1889, providing "that any provision contained in any note, bond, mortgage or other evidence of debt for the payment of an attorney fee in case of default in payment or of proceedings had to collect such note, bond or evidence of debt or to foreclose such mortgage is hereby declared to be against public policy and void," a stipulation for attorney's fee in an otherwise negotiable note cannot have the effect of destroying its negotiability.
5. The note in suit is held to be negotiable, whether regarded as an Iowa or a South Dakota contract.
Appeal from circuit court, Lincoln county; Joseph W. Jones, Judge.
Action by C. Q. Chandler against C. B. Kennedy on a note. From a judgment for plaintiff, and an order denying a new trial defendant appeals. Affirmed.
C. B Kennedy, for appellant. Aikens & Brown, for respondent.
This is an action brought by respondent, as plaintiff, against the appellant, upon a promissory note made by him to W. L. White and by him indorsed before maturity to the respondent. Appellant admitted the making of the note, but set up an affirmative defense. It being obvious that the admissibility of such defense depended upon whether the note was negotiable or not, the attention of the trial court was first directed to that question, and, having determined that the note was negotiable, ruled out the affirmative defense, and rendered judgment against the appellant. From such judgment, and an order refusing a motion for a new trial, this appeal is taken.
The note was dated and payable at Sioux City, Iowa, and though actually signed by appellant at Canton, S. D., was by him sent to Sioux City, to be delivered to the payee, if the title to the land for which it was given in part payment should be found satisfactory to appellant; and it was afterwards, by direction of appellant, delivered to the payee, at Sioux City, so that there can be little doubt that it should be treated as an Iowa contract.
Respondent objects, at the outset, that the record does not entitle appellant to a review of the errors assigned, for the reason that the bill of exceptions contains no specification of either the errors of law occurring at the trial, upon which the party will rely, or the particulars in which he claims the evidence was insufficient to sustain the decision of the court. Appellant, on the other hand, insists that the judgment must be reversed because the trial court made no findings of fact. It was entirely competent for the parties to waive findings. Comp. Laws, § 5068. If findings were waived, it was not error to render judgment without them. Hence, to show error, it must affirmatively appear that they were not waived. Every presumption goes to sustain the judgment, and it has often been held, under the same provisions as ours, that, unless the record shows that there was no waiver, it will be presumed there was. Smith v. Lawrence, 53 Cal. 34; Mulcahy v. Glazier, 51 Cal. 626; Carr v. Cronan, 54 Cal. 600; Reynolds v. Brumagin, Id. 254. But appellant insists that this is not a case of no findings, which might be cured by the presumption of waiver, but a case in which the court did file what it called "findings," but which are not so in fact, thus forbidding resort to the presumption that findings were waived. He says in his brief that his abstract shows that "the court made and filed the following as its findings of fact and conclusions of law, no other finding of fact or conclusion of law being made by the court." This is a slightly incorrect recital of what the abstract states. The abstract says, "The court made and filed the following as its findings and judgment, no other finding of fact or conclusion of law being made by the court." Looking now to the finding referred to, it appears that the court did not assume to find any fact. It says, after reciting the submission of the case, "now finds (there being no dispute as to the facts), as conclusion of law, that," etc.; thus expressly negativing the thought that this was intended as, or to take the place of, a finding of fact. It is expressly stated that the finding is of the law, and not of the facts. In the absence of a showing to the contrary, we think the presumption attaches that findings of fact were waived.
As to respondent's objection that the bill of exceptions contains no specification of "the particular errors of law upon which the party will rely," or the particulars in which the evidence is alleged to be insufficient, it would seem that a reference to the statute itself ought to be sufficient. Its requirement in this respect seems exceedingly clear and perspicuous, and yet a good many cases come here in which this rule of the statute is entirely ignored. This provision was not intended as a mere suggestion of what would be a good and proper way in which to make such record, but was intended to, and does very expressly, prescribe the way in which it must be done, and declares that unless it is so done the bill of exceptions or statement shall be disregarded. The requirement is not an arbitrary or formal one, but an essential element of the statutory plan for making a record for the review of a case. During the progress of a trial it generally occurs that exceptions are taken which, upon more mature reflection, the exceptor himself does not regard as tenable, and upon which he would not rely on a review of the case. In his proposed bill of exceptions or statement, he puts in only so much of the evidence or other matters as is necessary to explain the exceptions upon which he intends to rely. Unless he therein specify the particular errors which he intends to urge and rely upon, and the particulars in which he claims the evidence is insufficient, the adverse party is unable intelligently to prepare amendments. He is entitled to be advised of what particular points will be urged as error, so that he may judge for himself whether the proposed bill or statement does present so much of the evidence as is necessary to explain the exceptions to be relied upon, or to sustain the verdict or decision of the court. The trial judge is also an interested party. He is to settle the bill or statement...
To continue reading
Request your trial