Davis v. Cook

• Decision Date: 20 November 1896
• Citation: 9 S.D. 319,69 N.W. 18
• Parties: DAVIS, Plaintiff and respondent, v. COOK, Defendant and appellant.
• Court: South Dakota Supreme Court

9 S.D. 319

69 N.W. 18

DAVIS, Plaintiff and respondent,

v.

COOK, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Bon Homme County, SD Hon. E. G. Smith, Judge. Affirmed J. D. Elliott, Horner & Stewart Attorneys for appellant. W. T. Williams Attorney for respondent. Opinion filed Nov. 20, 1896

CORSON, P. J.

This is an appeal from an order granting a new trial. The plaintiff brought the action to quiet the title to a tract of land in Bon Homme county. On the trial he sought to establish his title through attachment proceedings, judgment, and sale under execution, in an action in which H. D. Brown was plaintiff and one John Klemme was defendant, it being claimed that Klemme was the owner of the land at the time that action was instituted. No personal service of the summons was made upon Klemme in the attachment suit, and he did not appear in the action, but substituted service was made by the publication of the summons by order of the judge upon an affidavit hereafter considered. On the trial the record in the attachment suit and the proceedings had thereunder were offered in evidence by the plaintiff, and, upon objections by the defendant, were excluded. Plaintiff offering no further evidence, the court directed a verdict for the defendant. The plaintiff thereupon moved the court for a new trial upon the minutes of the court, stating as grounds therefor errors of law occurring at the trial in sustaining defendant’s objections to the introduction of the record in the attachment suit. The respondent moved in this court to purge the record by striking out the bill of exceptions, for the reason that the court had no jurisdiction to settle the same as the time granted by the court for that purpose had expired; and for the further reason that the court allowed the bill to be amended by the defendant after the same was submitted to him for settlement. We are of the opinion that neither point is well taken. The bill of exceptions was served within the time granted by the judge, and, though there was some delay in presenting the bill to the judge, it seems to have resulted from an oral stipulation between the parties. The time was extended by the judge for the settlement of the bill, and in his order extending the time he recites that it was for “good cause shown.” The case presents an entirely different question from that presented in McGillycuddy v. Morris,(1895). In the latter case several months had elapsed after the time given had expired before any bill of exceptions was prepared and served, and no new time was fixed by the court for the settlement of the same upon “good cause shown.”

The second position is equally untenable. The amendment proposed was to insert a specification of the particular errors relied upon in the bill of exceptions. This amendment was properly allowed, We are of the opinion that it is the duty of the trial judge to see that the specifications of the particular errors relied upon are contained in the bill of exceptions before he settles the same. Subdivisions 2, 3, § 5090, Comp. Laws. This specification is essential to enable the judge to properly settle the bill or statement, and have it contain only such matters as are necessary, and in order that he may eliminate all redundant and useless matter in the bill or statement.

The grounds for the motion for a new trial being purely legal grounds, and no question of judicial discretion being involved, this court will review the action of the trial court as one presenting a question of law only. Sandmeyer v. Insurance Co.,(1891). The objections made to the introduction of the records are thus stated in the abstract:

“The defendant thereupon objected to the introduction of the exhibit offered for the reason that it appears upon the face of the same that the court had no jurisdiction to issue the order of publication of summons for the reason that no acts of diligence are alleged in the affidavit upon which the same was issued, … and for the further reason that there is no affidavit of the mailing of a copy of the summons and complaint, and for the further reason that the facts alleged in the affidavit and complaint stating or purporting to state a cause of action against the defendant are not sworn to except upon information and belief, and no source of information or belief is alleged.”

The affidavit upon which the order of publication was granted was made by the attorney, who says

“he is the attorney for the plaintiff in the above-entitled action; that a cause of action [exists] in favor of the above named plaintiff and against the above-named defendant, the grounds of which appear by the sworn complaint in this action, hereto annexed; [that] the statements contained therein are true to the best knowledge, information, and belief of this deponent; that the defendant, John P. Klemme, is not a resident of this state, but resides in the city of Albert Lea, in the state of Minnesota, as deponent is informed by one D. P. R. Hibbs, an attorney at law at Albert Lea, Minn., by letter, and also by H. D. Brown & Co., bankers at Albert Lea, Minn.; and that said defendant, after due diligence, cannot be found within this state, he being now at Albert Lea, Minn.; that said defendant has property within this state, to-wit, a farm of 160 acres, with improvements, situated in Bon Homme county, South Dakota, … which said real estate has been attached by the plaintiff in this action under and by virtue of a warrant of attachment issued in this action.”

The only questions presented for our determination, therefore, are: Was the affidavit sufficient to authorize the court to grant the order for the publication of the summons, when considered in a collateral...