Keyes v. Baskerville, 4459

• Court: Supreme Court of South Dakota
• Writing for the Court: GATES, J.
• Citation: 42 S.D. 381,175 N.W. 874
• Parties: D. L. KEYES, Plaintiff and respondent, v. M. R. BASKERVILLE, Defendant and appellant.
• Decision Date: 27 December 1919
• Docket Number: 4459

42 S.D. 381
175 N.W. 874
D. L. KEYES,
Plaintiff and respondent,
v.
M. R. BASKERVILLE,
Defendant and appellant.


South Dakota Supreme Court
Appeal from Circuit Court, Codington County, SD
Hon. Carl G. Sherwood, Judge
#4459--Affirmed

McFarland & Johnson, J. G. McFarland, A. K. Gardner
Attorneys for Appellant.

Hanten, Hanten & Gault
Attorneys for Respondent.

Opinion filed December 27, 1919

[42 SD 383-385]

GATES, J.

This was originally an appeal from a judgment and an order denying a new trial. The motion for a new trial was submitted to the trial court on June 17, 1918, and taken under advisement. It was denied August 13, 1918. The time for appealing from the judgment expired June 30, 1918, so that the motion for a new trial had actually been submitted before the expiration of such period, and the rule announced in Grove v. Morris, would not apply. The appeal, so far as it purported to be an appeal from the judgment, was dismissed. Keyes v. Baskerville, 170 N.W. 143.

The question now is: What errors assigned may now be reviewed upon that portion of the appeal remaining, viz., the appeal from the order denying a new trial? Are we now permitted to review any alleged error that might have been reviewed upon the appeal from judgment?

As we understand the run of decisions of this court and of the courts of other states having statutes similar to ours, the following paragraphs lettered A, B, and C, cover the subject of what may be reviewed, and how, upon an appeal from an order denying a new trial and upon an appeal from a judgment. We have not attempted to cite all of the decisions of this court especially upon the phase of the matter relating to the insufficiency of the evidence to justify the verdict.

A. The several kinds of questions described in the following six subdivisions of section 301, C. C. P. (section 2555, Rev. Code 1919), may not be reviewed on an appeal solely from a judgment:

(a) Questions of irregularity or abuse of discretion

[42 SD 387]

described in subdivision 1. As to the matters covered by this subdivision, see Hayne, New Trial & App. (Rev. Ed.), §§24-63.

(b) Questions of misconduct described in subdivision 2. See Hayne, §§ 64-74a.

(c) Questions of accident or surprise described in subdivision 3. See Hayne, §§ 75-86.

(d) Questions of newly discovered evidence described in subdivision 4. See Hayne, §§ 87-90

(e) Questions of excessive damages described in subdivision 5. Swallow v. First St. Bk., 161 N.W. 207. See also Gamble v. Keyes, 166 N.W. 134. See Hayne, §§ 94-5.

(f) Questions of insufficiency of evidence described in subdivision 6. Pierce v. Manning, 51 N.W. 332; Norwegian Plow Co. v. Bellon, 57 N.W. 17; Barnard & L. Mfg. Co. v. Galloway, 58 N.W. 565; Gade v. Collins, 66 N.W. 466; Taylor v. Bank of Volga, 70 N.W. 834; McNab v. N. P. Ry. Co., 98 N.W. 353; Foss v. Van Wagenen, 104 N.W. 605; Stephens v. Faus, 106 N.W. 56; Subera v. Jones, 108 N.W. 26; Heald v. Strong, 138 N.W. 1114; Lyle v. Barnes, 139 N.W. 338; Lee v. Clark Imp. Co., 141 N.W. 986; Cranmer v. Christian, 166 N.W. 1086. See, also, Hayne, §§ 96-98.

There is an exception to this rule where the judgment is entered after the order denying new trial its entered. In such case an appeal from the judgment brings up for review the order denying a new trial if such order is designated for review. Hawkins v. Hubbard, 51 N.W. 774; Granger v. Roll, 62 N.W. 970; Gade v. Collins, 66 N.W. 466; Hagaman v. Gillis, 68 N.W. 192.

B. The two following kinds of questions described in said section 301, C. C. P., may be reviewed upon a hill of exceptions (settled record) or upon the minutes of the court on an appeal from either a judgment or an order denying a new trial.

[42 SD 388]

(g) The claim that the verdict or decision is against law described in subdivision 6. As to the definition and application of this clause; see Hayne, § 99; Gartner v. Mohan, 163 N.W. 647; Beck v. C. M. & St. P. Ry. Co., 164 N.W. 74.

(h) Errors in law occurring at the trial mentioned in subdivision 7. Wood v. Nissen, 49 N.W. 103; Jones Lbr. Co. v. Faris, 58 N.W. 813; LeClaire v. Wells, 64 N.W. 519; McPherrin v. Jones, 65 N.W. 685; Carroll v. Nisbet, 70 N.W. 634; McNab v. N. P. Ry. Co., 98 N.W. 353; MacGregor v. Pierce, 95 N.W. 281; Hedderich v. Hedderich, 123 N.W. 276; Russell v. Olsen, 37 LRA (NS) 1217, AnnCas 1914B, 1069; Grasinger v. Lucas, 123 N.W. 77; H. C. Behrens Lbr. Co. v. Lager, 125 N.W. 574; Lyle v. Barnes, 139 N.W. 338; Williamson v. Voedisch Jewelry Co., 152 N.W. 508; In re Roberts' Estate, 170 N.W. 580; Hayden v. City of Sisseton, 171 N.W. 88; Hayne, §§ 100-132.

C. Matters appearing upon the face of the judgment roll without the necessity of the settlement of a record may only be reviewed on an appeal from the judgment, viz.: In relation to the pleadings; as to whether the findings of fact support the conclusions or judgment; as to whether the verdict supports the judgment; and questions as to the correctness of intermediate orders necessarily affecting the judgment (other than orders referred to in subdivision 1 of said section 301, C. C. P.). Hayne, § 186; Hackett v. Gunderson, 47 N.W. 546; Pierce v. Manning, 51 N.W. 332; Norwegian Plow Co. v. Bellon, 57 N.W. 17; Parker v. Vinson, 77 N.W. 1023; Brown v. Brown, 81 N.W. 627; Loiseau v. Threlstad, 85 N.W. 189; Plunkett v. Hanschka, 85 N.W. 1004; Blackman v. City of Hot Springs, 85 N.W. 996; Sweatman v. Bathrick, 95 N.W. 422; Neeley v. Roberts, 95 N.W. 921; Wolf v. Sneve, 121 N.W. 781;

[42 SD 389]

Goldberg v. Sisseton L. & T. Co., 140 AmStRep 775; Hardin v. Graham, 150 N.W. 895; Christofferson v. Wee, 139 N.W. 689; Miller Co. v. Minckler, 152 N.W. 664; Fairmount & V. Ry. Co. v. Bethke, 159 N.W. 56; In re Roberts' Estate, 170 N.W. 580; Hayden v. City of Sisseton, 171 N.W. 88.

We have positively asserted the rule as to paragraph A(f) notwithstanding the fact that in Irwin v. Lattin, AnnCas 1914C, 1044, there was expressed on page 5, par. 3, 29 SD, and page 761, 135 N. W. (Ann. Cas. 1914C, 1044), a doubt as to the proper interpretation of the last sentence of section 463, C. C. P., and we have also positively asserted the rule as to paragraph B(h) notwithstanding the fact that in Hepner v. Wheatley, 148 N.W. 594, a doubt thereof might be inferred from the language on page 341, par. 1, 34 SD, and page 595, 148 NW.

In Carlberg v. Fields, 146 N.W. 560, this court held upon an appeal from an order denying a new trial, where a former appeal from the judgment alone had been dismissed, that it would not consider assignments of error that might have been presented upon the former appeal. The distinction between that situation and this is that there a valid appeal had been taken and dismissed upon its merits. Here the appeal from the judgment was a nullity because not taken in time and the effect is the same as though no appeal had been taken. Aldrich v. Pub. Op. Pub. Co., 132 N.W. 278; Rayne, pp. 1517-1519.

In Irwin v. Lattin, supra, this court assumed, without deciding, that the sufficiency of the evidence to sustain the findings in a court case might be reviewed upon an appeal from the judgment or upon appeal from the order denying new trial. It then held that because, after judgment there had been a motion for new trial which had been denied, and because no appeal had been taken from the order denying same, the court would not review that question on an appeal...