Graff v. Engebretson, 8139.

• Decision Date: 25 February 1938
• Docket Number: No. 8139.,8139.
• Citation: 66 S.D. 45,278 N.W. 28
• Parties: GRAFF v. ENGEBRETSON et al. (ENGEBRETSON et al., Interveners).
• Court: South Dakota Supreme Court

66 S.D. 45

278 N.W. 28

GRAFF

v.ENGEBRETSON et al. (ENGEBRETSON et al., Interveners).

No. 8139.

Supreme Court of South Dakota.

February 25, 1938.

Appeal from Circuit Court, Minnehaha County; L. L. Fleeger, Judge.

Action for deficiency resulting from mortgage foreclosure by A. N. Graff, administrator of the estate of Lars Engebretson, deceased, against C. L. Engebretson and another, wherein defendant recovered judgment on a counterclaim, which plaintiff paid, and thereafter Martin Engebretson and others intervened. From an order setting aside the prior judgment and permitting the intervention, plaintiff appeals. On motion to dismiss the appeal.

Motion denied.

Danforth & Davenport, of Sioux Falls, for appellant.

James O. Berdahl, L. E. Waggoner, R. C. Riter, and B. O. Stordahl, all of Sioux Falls, for respondents.

RUDOLPH, Judge.

This case is before the court on a motion to dismiss the appeal. The facts, so far as material to this motion, are as follows: In September, 1936, the plaintiff, A. N. Graff, as administrator of the estate of Lars Engebretson, commenced an action against C. L. Engebretson, one of the heirs of the estate, to recover the sum of $2,208.66, being the amount due on an alleged deficiency resulting from a foreclosure of real estate mortgage held by plaintiff against property owned by defendant. In this action the defendant interposed an answer denying liability, and also a counterclaim wherein he alleged that his distributive share of the estate had from time to time been withheld from him, that this distributive share amounted to $1,449.62, and judgment was asked for that amount. The matter came on for hearing before the court and was submitted on a stipulation of the parties. The court entered its judgment dismissing the complaint of the plaintiff and awarding judgment to the defendant on his counterclaim. This judgment was entered on the 6th day of October, 1936, and some time after its entry was paid by the plaintiff administrator out of funds belonging to the estate. In August, 1937, there was submitted to the trial court an application by five of the heirs of the Engebretson estate wherein these heirs sought to have the judgment which the trial court had entered in the principal action set aside and permission granted them to intervene in the action. After a hearing upon this application the trial court did set aside its judgment and entered its order permitting the heirs to intervene in the action. The present appeal is from this order of the trial court, and is taken by the plaintiff, A. N. Graff, in his representative capacity. Respondents have moved to dismiss the appeal.

[1] The first contention in support of this motion is that there is no settled record upon which to base the appeal. In the case of Farmers' & Merchants' State Bank of Hecla v. Michael, 36 S.D. 172, 153 N.W. 1008, this court said: “In case there is no settled record, and the errors complained of are such as can only be presented upon a settled record, the appeal will not be dismissed, but the judgment below will be affirmed.”

See, also, Anderson v. Bruflat, 39 S.D. 555, 165 N.W. 538;Rodman v. Rodman, 52 S.D. 339, 217 N.W. 507;Schurman v. Schurman, 60 S.D. 489, 245 N.W. 39;Badger State Bank v. Weiss, 60 S.D. 484, 245 N.W. 41. From the rule announced in these cases it is clear that the appeal should not be dismissed because of this first reason that is urged. If the errors which are...