Keyes v. Baskerville

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

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

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 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.

(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; 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 from the judgment.

In King v. Hanson, the court said (their practice on new trial and appeal being like ours):

"The first ground of the motion is based upon the assumption that the time for appealing from an order granting or refusing a new trial expires when the time for appealing from a judgment has expired. This is erroneous. The remedy afforded by an appeal from a judgment and the remedy by appeal from an order granting or refusing a new trial are wholly independent remedies. A party aggrieved may invoke one or the other, or bath, at his election, provided only he does so within the time and in the manner provided by statute. The periods of time in which these independent rights may be exercised are fixed by the statute, and are in no respect dependent one upon the other."

See, also, McCann v. Gilmore (N. D.) 172 N.W. 236.

In Mueller Lbr. Co. v. McCaffrey, 141 Iowa 730, no appeal had been taken from the judgment. The appeal from the order denying a new trial was taken after the right to appeal from the judgment had expired, but within the time allowed for an appeal from the order. It was held that the matters reviewable on motion for new trial might be reviewed on appeal, although some of them might have been reviewed on an appeal from the judgment.

The California decisions also hold that an appeal from the judgment and from an order denying new trial are independent remedies and that upon appeal from the order all matters before the court on the motion can be reviewed. Mayne, § 2; Houser, etc., Mfg. Co. v. Hargrove 129 Cal. 90, 61 Pac. 660; Riverside Water Co. v. Gage, 108 Cal. 240, 41 Pac. 299; Brison v. Brison, 90 Cal. 323; 27 Pac. 186. But as broadly stated as that the California decisions conflict with Carlsberg v. Fields, supra, and Irwin v. Lattin, supra. To keep this decision in harmony with those, we must modify the California rule to the extent of holding that, where two method's of reviewing the same question are open, the partial pursuit of one and its abandonment or determination constitute a bar to the pursuit of the other; but the mere failure to invoke the one is not a bar to the invoking of the other.

We therefore hold in the present case that inasmuch as the motion for new trial had been submitted to the trial court before the right to appeal from the judgment had expired, and inasmuch as the appeal from the judgment was abortive and the situation is the same as though no appeal had been taken from the judgment, and inasmuch as this appeal was taken within the 60 days prescribed by statute, therefore on this appeal all questions may be...