Jones Lumber & Merc. Co. v. Faris
| Decision Date | 26 April 1894 |
| Citation | 5 S.D. 348,58 N.W. 813 |
| Parties | JONES LUMBER & MERCANTILE CO., Plaintiff, v. FARIS, Defendant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Edmunds County, S.D.
Motion denied
L. W. Crofoot and Dudley P. Wayne
Attorneys for appellant.
C. H. Barron and Albert Gunderson
Attorneys for respondent.
Opinion filed April 26, 1894
This case is now before us on respondent’s motion to strike from appellant’s abstract all that purports to show the proceedings before the trial court, upon the following grounds:
“(1) As appears from said abstract, no motion for a new trial was made by appellant to the lower court.
(2) No bill of exception as appears from said abstract, was settled in this cause.
(3) The notice of appeal served by appellant does not require or demand a review of an order denying a motion for a new trial, or a review of the evidence or rulings of the court.”
A motion for a new trial is not a prerequisite to an appeal, so that it is not jurisdictional. Where there is no such motion, this court will not review the question of the sufficiency of the evidence to support the verdict. Pierce v. Manning, 2 S.D. 517, 51 N.W. 332 (1892); Evenson v. Webster, 3 S.D. 382, 53 N.W. 747, 44 AmStRep 802 (1892). While it is a better and more correct practice for the abstract to show specifically the fact that a motion was so made and denied, still, where the appellant, by the matters stated in his abstract, and by his asssignment of errors, presents for review questions which could not properly be presented unless such motion had been made, and the respondent does not dispute the fact that a motion was actually made and denied by the trial court, this court will consider appellant’s abstract as claiming that it was made. If respondent desires to raise the question that no motion was in fact made, he should do it by an additional abstract. A motion to strike out portions of appellant’s abstract, on the ground that it is not specifically stated therein that a motion for a new trial was made and denied, will be refused.
The motion, so far as it rests on the second ground, will be disposed of on the same theory, with the further suggestion that in this case that portion of the abstract which it is sought to have eliminated is distinctly headed “Bill of Exceptions.” While it is not catagorically alleged that a bill was duly settled or that what is stated in the abstract is taken from such a bill, such is the plain intendment, and it will be considered to be so claimed by the abstract. If respondent desires to make the point that no bill was settled, he should do so by an additional abstract. Thompson v. Silvers, 59 Iowa 670, 13 N.W. 854, fully supports these conclusions.
The third ground upon which this motion is based is that, the appeal not being from an order denying a motion for a new trial, but simply from the judgment, this court, on such appeal cannot review either the evidence, as to its sufficiency to support the verdict, or the rulings of the court upon the admission or rejection of evidence. Our statute and that of California are the same as to the grounds for a motion for a new trial, and the relation of such motion to the subsequent proceeding of appeal. In Brown v. Tolles, 7 Cal. 398, the supreme court of that state held that, while the facts of a case would not be reviewed unless a new trial had been demanded in the court below, yet errors in law occurring at the trial would be reviewed, although no motion for a new...
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