Connelly v. Sherwood, No. 12109
| Court | Supreme Court of South Dakota |
| Writing for the Court | ZASTROW |
| Citation | 268 N.W.2d 140 |
| Parties | Arnold B. CONNELLY and Elaine Connelly, Plaintiffs and Respondents, v. Douglas L. SHERWOOD and Sharon R. Sherwood, Defendants, Third-party Plaintiffs and Respondents. FITZGERALD CONCRETE, INC., Defendant, Third-party Plaintiff and Appellant, v. CONCRETE MATERIALS COMPANY, Third-party Defendant and Respondent. |
| Decision Date | 27 April 1978 |
| Docket Number | No. 12109 |
Page 140
v.
Douglas L. SHERWOOD and Sharon R. Sherwood, Defendants,
Third-party Plaintiffs and Respondents.
FITZGERALD CONCRETE, INC., Defendant, Third-party Plaintiff
and Appellant,
v.
CONCRETE MATERIALS COMPANY, Third-party Defendant and Respondent.
Page 141
Robert C. Heege of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiffs and respondents.
James H. Baker, Sioux Falls, for defendants, third-party plaintiffs and respondents.
Steve Jorgensen of Willy, Pruitt, Matthews & Jorgensen, Sioux Falls, for defendant, third-party plaintiff and appellant.
John E. Burke, Sioux Falls, for third-party defendant and respondent.
ZASTROW, Justice.
This is an appeal from the trial court's dismissal of the third-party complaint of appellant Fitzgerald Concrete, Inc. against Concrete Materials Company. We affirm the trial court's decision.
Plaintiffs Arnold B. Connelly and Elaine Connelly (Connellys) purchased land from defendants Douglas Sherwood and Sharon Sherwood (Sherwoods) upon which the Sherwoods were to build a new home. Sherwoods subcontracted the construction of a concrete driveway to Fitzgerald Concrete, Inc. (Fitzgerald) on or about October 1, 1973. Fitzgerald purchased the concrete materials from the third-party defendant Concrete Materials Company (Concrete Materials). The driveway was installed by Fitzgerald in the fall of 1973. Connellys moved into their new home in June of 1974. In the spring of 1975, Connellys noticed that the top layer of their driveway was disintegrating and washing away.
Connellys served a summons and complaint upon Sherwoods and Fitzgerald on July 22, 1975. On July 31, 1975, Fitzgerald filed a third-party complaint against Concrete Materials. Later, the Sherwoods also filed a cross complaint against Concrete Materials.
Trial to the court of this case was held on October 6, 1976. During the course of the trial, Concrete Materials moved for dismissal of the third-party complaint. The motion was granted. Judgment in the sum of $750 was entered against the Sherwoods and Fitzgerald on November 4, 1976. The court also ordered that Sherwoods were entitled to indemnity from Fitzgerald.
Fitzgerald appealed from the trial court's decision, claiming: (1) error in the dismissal of the third-party complaint against Concrete Materials; (2) error in the trial court's refusal to enter a finding that Fitzgerald's installation of the driveway was proper; and (3) lack of evidence sufficient to warrant a judgment against Fitzgerald.
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Horne v. Crozier, No. 19536
...Crozier acted in conscious disregard of his constitutional rights. His claim cannot transcend his own testimony. Connelly v. Sherwood, 268 N.W.2d 140, 141 (S.D.1978). Horne's proof simply fails to rise to the level of a constitutional violation. Cf. Cottrell v. Caldwell, 85 F.3d 1480 (11thC......
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Bozied v. City of Brookings, No. 21299
...of a version of relevant facts more favorable to his own contentions than he has given in his own testimony." Connelly v. Sherwood, 268 N.W.2d 140, 141 (S.D.1978). In this case, Mills is held to its testimony that the planners and architects for City foresaw the building finished for tenant......
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State v. Frey
...he himself testifies to. See, e.g., Swier v. Norwest Bank, 409 N.W.2d 121 (S.D.1987) (Henderson, J., dissenting); Connelly v. Sherwood, 268 N.W.2d 140 (S.D.1978); accord Swee v. Myrl & Roy's Paving, Inc. 283 N.W.2d 570 (S.D.1979); Drier v. Perfection, Inc., 259 N.W.2d 496 Additionally, ther......
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Kolb v. Kolb, No. 13557
...to the trial court's findings of fact and conclusions of law. O'Connor v. O'Connor, 307 N.W.2d 132 (S.D. 1981); Connelly v. Sherwood, 268 N.W.2d 140 (S.D. 1978). It is the findings of fact which are to be considered on appeal. Wall v. Wall, 260 N.W.2d 644 (S.D. 1977). I repeat: the three br......
-
Horne v. Crozier, No. 19536
...Crozier acted in conscious disregard of his constitutional rights. His claim cannot transcend his own testimony. Connelly v. Sherwood, 268 N.W.2d 140, 141 (S.D.1978). Horne's proof simply fails to rise to the level of a constitutional violation. Cf. Cottrell v. Caldwell, 85 F.3d 1480 (11thC......
-
Bozied v. City of Brookings, No. 21299
...of a version of relevant facts more favorable to his own contentions than he has given in his own testimony." Connelly v. Sherwood, 268 N.W.2d 140, 141 (S.D.1978). In this case, Mills is held to its testimony that the planners and architects for City foresaw the building finished for tenant......
-
State v. Frey
...he himself testifies to. See, e.g., Swier v. Norwest Bank, 409 N.W.2d 121 (S.D.1987) (Henderson, J., dissenting); Connelly v. Sherwood, 268 N.W.2d 140 (S.D.1978); accord Swee v. Myrl & Roy's Paving, Inc. 283 N.W.2d 570 (S.D.1979); Drier v. Perfection, Inc., 259 N.W.2d 496 Additionally, ther......
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Kolb v. Kolb, No. 13557
...to the trial court's findings of fact and conclusions of law. O'Connor v. O'Connor, 307 N.W.2d 132 (S.D. 1981); Connelly v. Sherwood, 268 N.W.2d 140 (S.D. 1978). It is the findings of fact which are to be considered on appeal. Wall v. Wall, 260 N.W.2d 644 (S.D. 1977). I repeat: the three br......