Hawkins v. Hubbard

• Decision Date: 16 March 1892
• Citation: 2 S.D. 631,51 N.W. 774
• Parties: HAWKINS Plaintiff, v. HUBBARD. Defendant.
• Court: South Dakota Supreme Court

2 S.D. 631

51 N.W. 774

HAWKINS Plaintiff,

v.

HUBBARD. Defendant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Frank R. Aikens, Judge Affirmed C. O. Bailey, W. H. Stoddard, J. K. Voorhees, Sioux Falls, SD Attorneys for appellants. Joe Kirby, Sioux Falls, SD Attorney for respondent. Opinion filed March 16, 1892

KELLAM, P. J.

Some time prior to the commencement of this action respondent was the owner of two horses, a wagon, and a set of double harness, upon which various persons held chattel mortgages. In the fall of 1887 he turned them over to one Kelly, as it would seem from the evidence to be kept for him. Subsequently the property came into the possession of appellant, —precisely why or how is not clearly disclosed, except that appellant appears to have paid certain mortgages, under one or more of which the property was advertised to be sold, and thus to have gotten possession of the same. From this point on there is conflict as to the facts, appellant claiming an agreement with respondent by which he was to keep the property as security for the advances so made, and respondent denying such agreement. Respondent brought this action against appellant, after an alleged demand and refusal, for the value of the property. The case was tried by a jury, and upon verdict judgment was rendered against appellant. After judgment appellant made a motion for a new trial, which was denied. He then appealed from the judgment and from the order refusing new trial. Respondent moves to dismiss the appeal, on the ground that one appeal does not lie from a judgment and an order refusing a new trial; that such is a double appeal, and is condemned by this court in Hackett v. Gunderson,(1891), and by the supreme court of Wisconsin in several cases cited. Hackett v. Gunderson does not control this case, because the facts are essentially different, and because the facts that made the rule a proper one in that case do not exist in this case. In that case the appeal was from two entirely separate and independent orders, having no connection with or affinity for each other,—one overruling a motion to set aside the verdict, and for new trial, on the ground of insufficiency of the evidence, made on bill of exceptions; the other denying a motion for new trial upon the ground of newly-discovered evidence, made on affidavits. In that case both motions were made and decided before judgment, and an appeal from the judgment would have brought both orders for review. In this case the motion was made after judgment and an appeal from the judgment alone would not have brought up the order for review. In Wisconsin, where the cases come from which are cited in support of this motion to dismiss, when the motion for new trial is made before judgment, error in denying the motion becomes error in the judgment, and upon that theory, and for reason, is reviewable on appeal from the judgment alone; the appeal from the judgment being intended to supersede the appeal from the order. Victor S. M. Co. v. Heller, 41 Wis. 657. But where the motion is made after judgment, as in the case at bar, this cannot be, for an appeal from the judgment cannot bring up for review errors occurring after the judgment was rendered. Morris v. Niles, 67 Wis. 341, 30 N.W. 353. This court will not review the question of the sufficiency of the evidence to support a verdict or finding until the question has been first presented to the court below by motion for new trial. Pierce v. Manning,(1892).

In this case one of the errors complained of is that the evidence did not justify the verdict, A motion for new trial was made on that ground and overruled, and the appeal is from the judgment and the decision on such motion. To dismiss this appeal because double would mean that two separate appeals should have been, and in such cases must be, taken. The question could not be reviewed on appeal from the judgment, because the motion was not made until after judgment; and an appeal from the decision on the motion for new trial, if reversed, would still leave; the judgment in force, with a doubtful power in the court below to disturb it, after the length of time that would usually be required to appeal and have decided by the supreme court the decision on the motion for new trial. We think this conclusion is not inconsistent even with the Wisconsin cases prior to their law of 1883, expressly authorizing such appeals to be joined in one notice; and certainly is in line with the decisions of other states, notably California, whose practice ours more nearly follows, perhaps, than that of Wisconsin. Carper ter v. Williamson, 25 Cal. 154; Winter v. Mc-Millan, 87 Cal. 256, 25 Pac. 407. The motion to dismiss is denied.

As to the merits the evidence is conflicting. Appellant’s theory (and there is evidence tending to support it) is that he took the property, which was then about to be sold on mortgage, in the spring of 1888, from the possession of Norton, a mortgagee, and paid up the mortgage in order to assist respondent, who was then out of health and in financial difficulty; that he immediately advised respondent of what lie had done, who seemed pleased with and acquiesced in the arrangement, and requested appellant to pay other claims against the property, and hold the same until he could reimburse him, which, upon such request, appellant did, to a considerable amount, and that none of the money so paid has been refunded or tendered; that, while so holding the property, he used it moderately in his business as a compensation for its keeping.

Respondent, on the other hand, claims (and there is evitending to support the claim) that he never authorized appellant to take possession of the property, and never subsequently agreed to or ratified the same; that he never requested appellant to pay any money for him, either on mortgages on the property or otherwise; and never agreed or consented that lie might hold the property until moneys so advanced were repaid, and that he never authorized appellant to use the property. Two issues of...