Herron v. Fox

• Decision Date: 16 November 1939
• Docket Number: 8243.
• Citation: 288 N.W. 459,67 S.D. 36
• Parties: HERRON v. FOX et al.
• Court: South Dakota Supreme Court

288 N.W. 459

67 S.D. 36

HERRON v. FOX et al.

No. 8243.

Supreme Court of South Dakota

November 16, 1939

Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge.

Action by Frank G. Herron against Walter G. Fox and another for foreclosure of a conditional sales contract. From an order denying a change of venue to the place of residence of defendant, defendants appeal.

Reversed.

Henry C. Mundt and Jerry Bauer, both of Sioux Falls, for appellants.

T. R Johnson, of Sioux Falls, for respondent.

SMITH Judge.

Defendants have appealed from an order of the trial court denying a change of venue to the place of residence of the defendants. The action was brought in Minnehaha County. In his complaint the plaintiff stated his cause of action in substance as follows: That theretofore the defendants had purchased certain personal property located in Minnehaha County from plaintiff under a conditional sales contract, a copy of which was annexed to the complaint; that the defendants had defaulted in the payment of the purchase price; that no proceedings had been had at law for the recovery of the sums remaining due; that the defendants abandoned and surrendered the property to plaintiff, and that plaintiff had peaceably repossessed said property and was in possession thereof. In his prayer plaintiff asked that the contract be foreclosed that the court determine the actual amount due, that the property be sold and applied thereon, and that the defendants be required to pay any deficiency.

Based upon the holding of this court in Aldrich v. Public Opinion Pub. Co. et al., 27 S.D. 589, 132 N.W. 278, and Carlton v. Saville, 51 S.D. 282, 213 N.W. 509 plaintiff moved to dismiss the appeal for the reason that no undertaking was served with the notice of appeal. An examination of the record discloses that within the time permitted for an appeal, and on the fourth day after the service of a notice of appeal, defendants attempted to serve an undertaking and respondent placed the following signed endorsement on said original undertaking, namely, "Service of the within undertaking this 25th day of October, 1938." Appellants thereupon served the clerk and filed the notice and undertaking in the office of the clerk. By the above described conduct of the plaintiff the defendants had a right to believe that plaintiff was accepting service of the undertaking and intended to relieve the defendants from the necessity of applying to the court for permission to serve and file an undertaking pursuant to the provisions of § 3167, Rev.Code of 1919, SDC, 33.0729. In the case of La Penotiere v. Kellar, 28 S.D. 469, 134 N.W. 48, 49, followed in Loveland et al. v. Perriton, 49 S.D. 287, 207 N.W. 100, it was said: "The law never requires a useless act, and therefore, if a respondent believes the failure of an appellant to serve an undertaking to have been the result of excusable neglect, and, instead of requiring appellant to procure an order under section 461 [later § 3167, Rev.Code of 1919, SDC, 33.0729], sees fit to waive the same by accepting the service of that which confers jurisdiction upon the appellate court, it certainly is true that by such act he confers full jurisdiction upon such court exactly as though such service of undertaking had been made after and based upon an order procured under section 461." The motion must be denied.

That an order denying a change of venue is an appealable order was determined by the territorial court, White v. Chicago, M. & St. P. Ry. Co., 5 Dak. 508, 41 N.W. 730, and such an order has been treated as appealable in numerous decisions of this court. Hawthorne v. Arlt et al., 59 S.D. 76, 238 N.W. 153. We are not now disposed to reexamine the point.

The statutes of this state fix a definite place of trial for certain actions, render the venue optional with the plaintiff in certain other actions, and provide "In all other cases the action shall be tried in the county in which the defendant or defendants, or any of them, shall reside at the commencement of the action * * *." §§ 2325-2327 Rev.Code of 1919, SDC, 33.0301-33.0304. Under the showing appearing in the record it can not seriously be questioned but what these defendants resided in Brule County at the commencement of this action. A single provision of the statute is called to our attention and urged upon us as fixing the place of trial of this action in Minnehaha County, the place of...