Juckett v. Fargo Mercantile Co.

• Decision Date: 31 August 1904
• Citation: 100 N.W. 742,18 S.D. 347
• Parties: JUCKETT v. FARGO MERCANTILE CO. et al. (two cases). FARGO v. JUCKETT et al.
• Court: South Dakota Supreme Court

100 N.W. 742

18 S.D. 347

JUCKETT v. FARGO MERCANTILE CO. et al. (two cases).

FARGO v. JUCKETT et al.

Supreme Court of South Dakota

August 31, 1904

Actions by Elmer R. Juckett, trustee, against the Fargo Mercantile Company and others, and by Hattie M. Fargo against Elmer R Juckett, trustee, and another. Actions consolidated. From the judgment the defendants in the first two actions and Hattie M. Fargo, plaintiff in the third action, appeal. On motion to strike out the bill of exceptions or statement of the case. Motion denied.

Wilson & Wilson and Charles W. Brown, for appellants. Cleveland & Juckett and Chauncey L. Wood, for respondents.

HANEY J.

In these three actions, which were consolidated in the court below, respondents moved to strike out the bill of exceptions or statement of the case and appellants' abstract. There is no difference between a statement and bill of exceptions in form or substance, except that the former follows a notice of intention to move for a new trial. People v Crane, 60 Cal. 279. In the cases at bar there was a notice of intention to move for a new trial upon "a bill of exceptions to be hereafter settled," followed by service of proposed exceptions; therefore the portion of the record sought to be excluded by defendants' motion should be termed "a statement of the case." The contention that the statement was not settled within the time or in the manner required by the statute is untenable. It appears from an affidavit indorsed on the statement that a copy of the "proposed bill of exceptions" was personally served on one of the respondents' attorneys at Hot Springs, in this state, January 22, 1903. The statement, as proposed and as settled, contains these recitals: "No notice of the entry of said decision, findings, conclusions, and judgment or either thereof, was ever served upon the said defendants in said two actions first above entitled, or either of them or upon the plaintiff Hattie M. Fargo. That thereafter, and within the time allowed by law, the said defendants in said two actions first above entitled and the plaintiff Hattie M. Fargo duly served upon plaintiffs' attorneys the following notice." (Here follows notice of intention.) The certificate of the trial judge is as follows: "The foregoing bill of exceptions having been duly proposed and served within the time allowed by law, and no amendments thereto having been proposed, served, or filed, and the said bill of exceptions being this day presented to the undersigned, the judge of the above-entitled court, who heard and tried said actions, and I being satisfied that the said bill of exceptions as heard and now presented is a full, true, and correct bill of exceptions, containing all the testimony and evidence introduced or offered at the trial of said actions, also all objections made or taken by said parties, the said plaintiffs and the said defendants, and each of them, upon the trial of said actions, together with the rulings and orders of the court thereon, and the exceptions of said parties, or either of them, thereto, the said bill of exceptions is hereby by me allowed, approved, signed, and sealed, and hereby by me made a part of the judgment roll and record in said actions. Done at Rapid City, in the said circuit and state, this 13th day of February, A. D. 1903. [ [Signed] Levi McGee, Judge." These provisions are found in the...