Johnson v. Olson

• Decision Date: 10 October 1945
• Docket Number: 8735.
• Parties: JOHNSON v. OLSON.
• Court: South Dakota Supreme Court

20 N.W.2d 226

70 S.D. 617

JOHNSON v. OLSON.

No. 8735.

Supreme Court of South Dakota

October 10, 1945

John Carl Mundt and B. O. Stordahl, both of Sioux Falls, for appellant.

Harold Bogue, of Canton, and Alan Bogue, of Sioux Falls, for respondent.

SMITH Presiding Judge.

The plaintiff seeks specific performance of a contract of adoption. The trial court found that the alleged contract was never made and entered judgment for defendant. Plaintiff has appealed.

Error is predicated upon the refusal of the trial court to hear and determine plaintiff's application for a new trial. The application was grounded upon surprise and insufficiency of the evidence to justify the findings of the court. As will appear from the opinion in Johnson v. Olson, S.D., 17 N.W.2d 697, the trial court erroneously concluded that the application was untimely and that it was without jurisdiction to hear and determine the same. It therefore entered an order dismissing plaintiff's motion.

The defendant urges that the application for new trial should be deemed denied and that our review of the record should proceed upon that basis. This contention is made under SDC 33.1608 which provides that if an application for a new trial has not been determined within forty days from the date of the application, it shall be deemed denied. We are of the opinion that the ends of justice will not be served by such a ruling.

A motion for a new trial upon the grounds urged by plaintiff is addressed to the sound discretion of the trial court and its ruling thereon will not be disturbed by this court in the absence of a clear showing of abuse of discretion. Houck v. Hult, 60 S.D. 570, 245 N.W. 469; Root v. Bingham, 26 S.D. 118, 128 N.W. 132, and see Keyes v. Baskerville, 42 S.D. 381, 175 N.W 874. A trial court is thus clothed with a broad discretion to afford litigants with an important and essential safeguard against a miscarriage of justice. In a case where the findings rest upon conflicting testimony and the credibility of witnesses is involved, this power of the trial court to order a re-examination of an issue of fact may constitute a defeated litigant's sole source of relief from an unjust result. See Houck v. Hult, supra. A litigant, who has made a proper and timely application, is entitled to have it considered on its merits. Until the trial court has actually exercised the discretion with which it is vested, the proceeding is without substance.

The statute urged by defendant contemplates a consideration of the merits of the application, and but provides the court with a method of announcing an adverse ruling. In such a case it will be...