Hayden v. City of Sisseton

• Citation: 41 S.D. 413,171 N.W. 88
• Decision Date: 12 March 1919
• Docket Number: No. 4458.,4458.
• Parties: HAYDEN v. CITY OF SISSETON.
• Court: Supreme Court of South Dakota

41 S.D. 413

171 N.W. 88

HAYDEN

v.CITY OF SISSETON.

No. 4458.

Supreme Court of South Dakota.

March 12, 1919.

Appeal from Circuit Court, Roberts County; Thomas L. Bouck, Judge.

Action by Joseph H. Hayden against the City of Sisseton. From a judgment for defendant and an order denying a new trial, plaintiff appeals. Order affirmed.Howard Babcock, of Sisseton, for appellant.

E. J. Turner and Batterton & Bunde, all of Sisseton, for defendant.

SMITH, P. J.

[1][2] Appeal from a judgment entered Sept. 12, 1916, and from an order denying a new trial. The appeal was perfected September 7, 1918. The time for appeal had then expired, and this court is without jurisdiction to entertain the appeal from the judgment. The appeal from the order overruling the motion for a new trial was taken within 60 days after the filing of the order, and is before us for consideration. Port Huron v. Zickrick, 25 S. D. 475, 127 N. W. 646;Carlberg v. Field, 31 S. D. 209, 140 N. W. 267.

[3][4][5][6] There are ten assignments of error, five of which are abandoned by appellant in his brief, and require no consideration. Three of the remaining assignments are as follows:

“(6) That the court erred in making the fifteenth finding of fact,” reciting the finding.

“(8) That the court erred in rendering judgment in favor of the defendant as against the plaintiff.

(9) That the court erred in not making findings in favor of the plaintiff upon all the issues, that the plaintiff is entitled to recover the amount of bonds upon which this action is brought.”

The tenth assignment alleges error in overruling plaintiff's motion for a new trial. None of the four assignments quoted refer, by number or otherwise, to corresponding specifications of error, but aside from this, they are wholly insufficient to present any question for review. Anderson v. Standard Acct. Ins. Co., 36 S. D. 390, 155 N. W. 1;Scanlon v. Rock, 25 S. D. 152, 125 N. W. 638;Stephens v. Faus, 20 S. D. 367, 106 N. W. 56.

These assignments being insufficient to present any ground for a new trial, the motion for a new trial was properly overruled.

[7] The seventh assignment is as follows:

“That the court erred in finding as a matter of law that the defendant is entitled to the judgment of this court dismissing said action upon the merits and for its costs and disbursements.”

Assuming without deciding that this assignment of error might be sufficient to present the question of law whether the judgment is sustained by the...