Geddis v. Folliett

• Decision Date: 07 April 1903
• Citation: 94 N.W. 431,16 S.D. 610
• Parties: GEDDIS v. FOLLIETT.
• Court: South Dakota Supreme Court

94 N.W. 431

16 S.D. 610

GEDDIS v. FOLLIETT.

Supreme Court of South Dakota

April 7, 1903

Appeal from Circuit Court, Beadle County.

Action by J. B. Geddis against F. L. Folliett. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Affirmed.

A. W Wilmarth, for appellant. Henry C. Hinckley, for respondent.

CORSON J.

This is an action to restrain the defendant from removing certain personal property from leased premises until the defendant pays damages due the plaintiff by reason of the defendant's failure to comply with the terms of the lease, and a division of the crops raised thereon made. The case was tried by a referee, and the findings and judgment were in favor of the defendant, and from this judgment, and order denying a new trial, the plaintiff has appealed.

Preliminary to a review of the case on the merits is a question of practice. The plaintiff moved the referee for a modification of the fifteenth finding, and that, upon such finding being modified, his conclusions of law and judgment should be in favor of the plaintiff. This motion was denied by the referee, and the motion was renewed on the coming in of the report in the circuit court, and again denied. A motion for new trial was thereupon made in the circuit court, and denied. It is contended by the appellant that the trial court should have modified the findings of fact of the referee, and his conclusions of law, and entered a judgment in favor of the plaintiff. It is insisted on the part of the defendant that the trial court was not authorized to modify or change the findings of fact of the referee, or his conclusions of law, and that it could only refuse to accept the report of the referee, or grant a new trial. We are of the opinion that the position taken by the defendant is correct. It is provided by section 9, c. 100, p. 232, of the Laws of 1891 that, "if the report is accepted by the court, judgment may be entered thereon;" and by section 10 it is provided: "A new trial may be had or an appeal taken to the Supreme Court in like manner as in other cases, and the report of the referee may be incorporated in the bill of exceptions. In case a new trial is granted, or if the report is not accepted, the parties may again refer the cause, or the same shall stand open for trial as though it had not been referred. And the party finally recovering is entitled to the costs of the former reference." It will thus be seen that the circuit court is authorized to accept the report and enter judgment thereon, or it may refuse to accept the report or grant a new trial, and that in case a new trial is granted, or the report is not accepted, the case may again be referred, or the same shall stand open for trial as if it had not been referred. No authority, therefore, seems to be conferred upon the circuit court to modify the report of the referee, or to change his findings or his conclusions of law. Whether the referee is authorized, after his report has been made, to modify or change his findings or his conclusions of law, it is not now necessary to decide.

The trial court, therefore, committed no error in refusing to modify the findings and conclusions of law of the referee. Precisely...