Gade v. Collins

• Citation: 8 S.D. 322,66 N.W. 466
• Parties: GADE v. COLLINS et al.
• Decision Date: 04 March 1896
• Court: Supreme Court of South Dakota

8 S.D. 322
66 N.W. 466

GADE
v.
COLLINS et al.

Supreme Court of South Dakota.

March 4, 1896.

Syllabus by the Court.

1. The insufficiency of the evidence to justify the findings of the court or verdict of the jury will only be reviewed by this court when made one of the grounds for a motion for a new trial in the trial court, and the order denying or granting a new trial has been brought to this court for review by a proper appeal.

2. An appeal from the judgment alone does not bring to this court for review an order denying or granting a new trial made after judgment.

Appeal from circuit court, Lawrence county; Charles M. Thomas, Judge.

Action by Frederick W. Gade against James A. Collins and others. From a judgment for plaintiff, defendants appeal. Affirmed.

[66 N.W. 466]

Joseph B. Moore and McLaughlin & McLaughlin, for appellants. Martin & Mason, for respondent.

CORSON, P. J.

This is an action to quiet plaintiff's title to a mining claim located and known as the “Dividend Lode.” The appellants, who were defendants in the action, claimed the same mining ground under and by virtue of a relocation of the same under the name of the “Cassie Lode.” The case was tried by the court without a jury, and findings were made, and a judgment rendered in favor of the plaintiff and respondent. From this judgment the defendants appeal.

The principal ground relied on to sustain the relocation of the mining claim by appellants was the failure of the respondent, claimant of the Dividend lode, to expend in development work upon that claim during the year 1886 the full sum of $100, as required by section 2324, Rev. St. U. S., and section 2009, Comp. Laws, and by reason of such

[66 N.W. 467]

failure the respondent's right to the claim was forfeited. The important question in the case therefore is, was the required amount of work done upon the Dividend claim? Appellants insist that there was a preponderance of the evidence in favor of their theory that the requisite amount of work was not done, and that is the only question discussed in appellants' brief on this appeal. The finding to which special objection is made as not justified by the evidence is as follows: “That during the month of January, 1886, the plaintiff caused to be performed and made upon said Dividend lode claim, and within the lines thereof, one hundred dollars ($100) worth of labor and improvements in sinking a shaft thereon; that the plaintiff has at no time abandoned or intended to abandon any part of said Dividend mining claim.”

A preliminary question is raised by the respondent, to be first determined, and that is, can the court, upon the record in this case, review the questions of fact presented? The respondent contends that such review cannot be made in this case for four reasons: (1) Because the notice of intention to move for a new trial was not served within the time prescribed by the statute; (2) because the notice of motion to move for a new trial did not state whether the motion would be made upon affidavits, minutes of the court, bill of exceptions, or statement; (3) because the bill of exceptions was not served and settled within the time prescribed by the statute; (4) because no appeal has been taken from the order of the circuit court...