Herron v. Allen
| Decision Date | 06 October 1913 |
| Parties | HERRON v. ALLEN. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Potter County; L. E. Gaffy and J. H Bottum, Judges.
Action by O. F. Herron against Alva M. Allen. From a judgment for plaintiff, and from an order denying a motion for new trial defendant appeals. Affirmed.
Hanten & Hanten, of Watertown, for appellant.
Robt. B. Fisk, of Gettysburg, for respondent.
Much is being written and spoken, and rightly so, concerning the law's delay. It seems the fashion to cast the odium therefor upon the courts, and there are undoubtedly cases wherein the courts-both trial and appellate-have laid themselves open to just criticism. That the blame is not all theirs is well illustrated by the history of the cause now before us, which history is as follows: Action instituted August 8, 1903; issue of fact joined October 3, 1903; trial had March 30, 1905; argued before trial court June 27, 1906 findings of fact, conclusions of law, and judgment signed June 28, 1906; execution stayed to September 20, 1906; error in judgment corrected March, 1909; findings, conclusions, and decree filed March 26, 1909; September, 1909, time for moving for new trial and for serving proposed statement extended to October 20, 1909; statement settled June 11, 1910; motion for new trial served July 1, 1910; new trial denied January 19 1911; notice of appeal served March 11, 1911; notice of appeal filed January 23, 1912, upon stipulation of counsel and leave of court obtained; respondent granted until April 1, 1912, within which to serve and file briefs; placed on April, 1912, calendar with respondent in default; taken up for final disposition when stipulations dated March 30, 1912, were found to have been filed May 3, 1912, which stipulations extended time for respondents to file briefs; cause stricken from calendar as same was not properly on calendar in view of above stipulations; other stipulations filed extending time for respondent's brief; respondent's brief filed April 30, 1913, being too late for April, 1913, calendar; May 29, 1913, ordered upon current calendar; reaches final decision in this court prior to date when it was entitled to go upon the calendar of this court. Undoubtedly some of the delay was unavoidable, but much must have been inexcusable, and there was none for which any court was responsible, except as it may be held responsible for leniency granted parties and counsel.
This action was brought to quiet the title in and to a quarter section of land in Potter county. It appears there were other defendants than appellant, but no attention need be paid to them, as their rights, if any, rest upon those of appellant. Both parties claim title to this land through one George E. Loring. Plaintiff claims through a deed to him, dated March 16, 1900, and recorded March 22, 1900, which deed was signed "G. E. Loring." Defendant claims through a sheriff's deed upon an execution sale, based upon a judgment against Loring in an action entitled Woodward v. Loring. There had been a prior execution issued on this judgment and levied on this land; a sale had been had upon such prior execution, upon which sale there was a deficiency remaining; Loring had redeemed this land from such prior sale; and March 22, 1900, the execution, through which defendant claims, was issued for the deficiency, and was levied upon the land.
Application for new trial was made, one ground therefor being newly discovered evidence. It is contended that this new evidence would show that Loring executed the deed to plaintiff without consideration, and that plaintiff is a mere "straw man" holding title for Loring. It is also contended that this new evidence would show that there was in fact a warrant of attachment regularly issued and levied upon the property in question at the time of, and in connection with, the commencement of the action of Woodward v. Loring. The purported judgment in Woodward v. Loring was a default judgment, based upon personal service of summons and complaint upon Loring-concededly a nonresident of this state-which service was made in Iowa, and was based upon an order for publication of summons. The trial court found that no attachment had been issued in said action.
Numerous assignments of error are presented, but, as we view the record, all questions material to this appeal may be discussed under two headings: (1) Proof of plaintiffs title; (2) materiality of the question as to whether or not there was in fact an attachment issued and levied upon the property in question, in the action of Woodward v. Loring.
Plaintiff, to prove his title, offered in evidence the record of his deed as the same appeared in the office of the register of deeds. Such record was objected to upon the ground that there was no sufficient proof that George E. Loring and G. E. Loring were one and the same person; also upon the ground that the acknowledgment to said deed was defective in form, and for that reason the deed improperly of record, and such record incompetent as proof of its execution. These objections were overruled, and such ruling is assigned as error. Appellant also claims that the evidence received did not sustain the court's finding that plaintiff got title to the land from Loring. In view of the position taken by appellant upon his motion for new trial, he cannot be heard to say that Loring did not execute the deed in question. The grantee in said deed having brought this action, it appears that he has accepted the deed, and, for the purposes of this action, it becomes immaterial what Loring's purpose was in the execution of said deed, unless appellant is in a position where he could claim title to said land as against Loring; if he could not claim title as against Loring, there can be, as against him, no fraudulent or fictitious transfer of said property by Loring. Is appellant in a position where he could claim title against Loring? This brings us to the second matter for our consideration.
Appellant makes no contention that the judgment which was obtained by substituted service was one which, without the issuance and...
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