Evenson v. Webster

• Court: Supreme Court of South Dakota
• Citation: 3 S.D. 382,53 N.W. 747
• Parties: EVENSON v. WEBSTER.
• Decision Date: 08 December 1892

3 S.D. 382
53 N.W. 747

EVENSON
v.
WEBSTER.

Supreme Court of South Dakota.

Dec. 8, 1892.

Syllabus by the Court.

1. To entitle a party to a review of the evidence in this court, to determine the sufficiency of the same to justify the verdict of a jury or the findings of the court, whether the case is tried by a jury or a court, he must have made a motion for a new trial in the court below, and have made the insufficiency of the evidence to justify the verdict or findings one of the grounds for such motion. Unless such motion for a new trial has been made in the court below, this court will decline to review the evidence. Following the decision of this court in Pierce v. Manning, 51 N. W. Rep. 332.

2. When it does not affirmatively appear from the abstract that a motion for a new trial was made in the court below, this court will assume that no such motion was made.

3. As it does not appear in this case that a motion for a new trial was made in the court below, this court will not review the evidence to determine its sufficiency to support the findings, and will only consider on this appeal the question of the sufficiency of the findings to sustain the judgment.

4. The statutes of this state prescribe no particular form in which a conveyance of real property shall be made, except that it shall be in writing, and subscribed by the party disposing of the same, and that it may be in the short form specified in section 3247, Comp. Laws. Any instrument, therefore, in writing, subscribed by the grantor, in which the grantor, grantee, consideration, and a description of the property intended to be conveyed are clearly specified, and containing words indicating an intention to transfer the estate, or the grantor's right, title, or interest therein, will be sufficient to transfer such real property, or such grantor's interest therein, though the term “grant” or other terms usually used in conveyances of real property are omitted, and the term “give” is substituted therefor.

5. The instrument under which the defendant claims title in this case examined, and held sufficient to convey the title of the brother of the plaintiff, in whom the title was vested when the alleged instrument was executed and delivered, prior to his death, and that it constitutes a deed.

6. An instrument in writing, though informal, which clearly indicates the intention of a party to release her interest in the property in controversy in this action, and made for a valuable consideration, may properly be held to estop her from maintaining an action to recover the property from one claiming title under the party to whom such instrument was given, and the instrument in this case is held to be sufficient to constitute such an estoppel.

Appeal from late district court, Minnehaha county; John E. Carland, Judge.

Action by Marie Anne Evenson against W. S. Webster to recover the possession of land. Judgment for defendant. Plaintiff appeals. Affirmed.

[53 N.W. 747]

Palmer & Rogde, for appellant. Davis, Lyon & Gates, for respondent.

CORSON, J.

This was an action brought by the plaintiff as the sister and only heir of Staale Simonson, deceased, to recover the possession of 160 acres of land in Minnehaha county, of which it is alleged said Simonson died seised. The case was tried by the court without a jury, and upon the facts found by the court and its conclusions of law, judgment was rendered for the defendant. From this judgment the plaintiff appeals.

Numerous errors are assigned, nearly all of which specify as grounds of error the insufficiency of the evidence to justify the findings. Counsel for defendant and respondent object to the consideration by this court of the errors assigned as to the

[53 N.W. 748]

insufficiency of the evidence to sustain the findings upon the grounds that no motion for a new trial was made in the trial court, and that by reason of the failure of appellant to move for a new trial this court is precluded from reviewing the evidence on this appeal. It does not appear from the abstract that a motion for a new trial was made in the court below, and, in the absence of such showing, this court will assume that no such motion was made. In the case of Pierce v. Manning, 51 N. W. Rep. 332, this court, on a full consideration and careful review of the authorities, held that when a party relies upon the error that the evidence is insufficient to justify the verdict or findings of a court, whether the case is tried by the court or a jury, he must move for a new trial in the trial court before this court will be authorized to review the evidence to determine its sufficiency to justify the verdict or findings of the court. The rule as laid down in that decision precludes us from reviewing the evidence in a case appealed to this court when no motion for a new trial has been made in the court below. Upon the record, therefore, as presented in this case, we are of the opinion that the objection made to a review of the evidence must be sustained, and that the errors assigned as to the insufficiency of the evidence to justify the findings of the court are not properly before us, and must be disregarded by us on this appeal.

All the errors assigned relating to the insufficiency of the evidence to support the findings being eliminated from the case, the only remaining error to be considered is, do the findings support the...