Kent v. Dakota Fire & Marine Ins. Co.
| Citation | 50 N.W. 85,2 S.D. 300 |
| Parties | Kent v. Dakota Fire & Marine Ins. Co. |
| Decision Date | 20 October 1891 |
| Court | Supreme Court of South Dakota |
1. The party alleging error in this court must be able to establish affirmatively the existence of such error by the record. It is only when the record affirmatively shows error that this court will reverse the judgment.
2. Every presumption is in favor of the correctness of the judgment of a court of general jurisdiction until the contrary is made affirmatively to appear.
3. Under the provisions of section 1, c. 112, Laws 1889, an order of reference should be made by the court or judge, and entered of record; but on appeal to this court, in the absence of evidence in the record showing that such an order was not made, the court will presume, in support of the judgment, that such an order was duly made.
4. A recital in the judgment that the issues "having been duly and legally referred," in the absence of evidence in the record countervailing such recital, or in any manner tending to impeach it, will be taken as true and based upon sufficient evidence before the court below.
5. By section 3 of said chapter, it is provided "that the court may review such report [of the referee,] and on motion enter judgment thereon, or set aside, or alter, or modify the same, and enter judgment upon the same so altered or modified, and may require the referees to amend their reports when necessary." Held that, under this provision, the court was authorized to add conclusions of law, when the same were omitted or imperfectly stated in the report, and enter judgment upon the findings so modified, without re-referring the report to the referee for amendment.
6. By section 1 of said chapter, it is provided that "all or any of the issues in an action, whether of fact or law, or both," may be referred. And by section 3 it is provided that referees "must state the facts found and their conclusions of law separately." Held, construing the two sections together, that referees are only required to state their conclusions of law when all the issues of fact and law are referred. Held, further, that in this case it does not appear from the record what issues were referred, and hence this court cannot say that the report did not conform to the order of reference.
7. It is further provided, by section 3 of said chapter, that referees must report their findings, "together with all the evidence taken by them, and all exceptions taken on the hearing." Held, that this provision is mandatory. Held further, that in this case, as it appears by the "additional abstract" that all the evidence was before the court when the report was confirmed and judgment entered, there was a substantial compliance with the statute.
Appeal from circuit court, Davison county.
Action by Caroline B. Kent against Dakota Fire & Marine Insurance Company to recover on an insurance policy. Judgment for plaintiff. Defendant appeals. Affirmed.
J. L Hannett, for appellant. A. B. Melville, for respondent.
This was an action on an insurance policy. The case was tried by a referee, who reported the facts in favor of the plaintiff upon which judgment was entered. Defendant appeals. Exceptions were filed to the report of the referee in the court below, but, on motion for judgment, the report was confirmed by an order, the material part of which is as follows: "It is ordered that the report of the referee herein be, and the same is, in all things confirmed; and the following findings of fact are hereby made the findings of the court to the same extent and as fully as if the same was separately set out as the findings of the court." The findings of fact reported by the referee, with a few slight changes, were signed by the court. To the findings so signed by the court is added the following: "The court finds as matter of law, that plaintiff is entitled to judgment against said defendant for the sum of $980.28, with interest from July 22, 1889." This was also signed by the court. Upon the findings and conclusions of law so found judgment was rendered in favor of plaintiff, in which is the following recital: "An action having been brought herein by the above-named plaintiff against the above-named defendant for the recovery of money, and issue having been duly joined in said action, and the same having been duly and legally referred by consent of parties to John H. Baldwin, Esq., an attorney and counselor at law, and said Baldwin having duly and legally made and filed within the proper time his report and findings of fact," etc. A bill of exceptions was duly settled, as appears by the certificate of the judge contained in the abstract, but it is not set out in the abstract, except the findings of fact by the referee, exceptions to his report, findings, and conclusions of law signed by the court, order confirming report, judgment, and exceptions taken thereto. Only two of the exceptions to the report of the referee need be set out, and these are as follows:
The first point made by appellant is that the court erred in confirming the report of the referee, for the reason that there had been no order made by the court, or judge thereof, referring the issues in this action to J. H. Baldwin, as referee, to hear and determine the same, or report his findings of fact and conclusions of law thereon; and that the issues in an action, whether of law or fact, can only be referred by the court, or judge thereof, in the manner provided by law. Section 1, c. 112, Laws 1889, provides as follows: ' This section was evidently copied from the statute of Wisconsin, with the words "judge thereof" added after "court." The corresponding section of the Wisconsin statute was construed by the supreme court of that state in Stone v. Merrill, 43 Wis. 72. and the court in that case says: As this decision was made prior to the adoption of the section by the late territory, it will be presumed that our legislature adopted the section with the construction given to it by the Wisconsin court. If, then, it was made to affirmatively appear, by the record before us, that no such order was made by a court or judge, the question presented would be a serious one. But it is contended by the learned counsel for respondent that it nowhere appears from the record before us that such an order was not made, and that all there is before the court is the suggestion of counsel for appellant in his brief. Counsel for respondent also contends that the record of appellant shows conclusively, for the purposes of this appeal, that such an order was made, as the court finds and recites in its judgment that the case was "duly and legally referred by the consent of the parties." A careful examination of appellant's abstract satisfies us that the contention of respondent's counsel is correct, and that the record fails to show, or even suggest, that such an order was not in fact made. Counsel for appellant filed full and carefully prepared exceptions to the report of the referee in the court below, but nowhere in them is it even suggested that such an order was not made. This ground of exception is entirely omitted, and in no part of the exceptions or record, so far as the same appears in the abstract, is the fact that no such order was made stated, referred to, or suggested.
Counsel for appellant in his brief has failed to point...
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