Lile v. Barnes

Citation139 N.W. 338,30 S.D. 647
PartiesLILE v. BARNES.
Decision Date06 January 1913
CourtSupreme Court of South Dakota

OPINION TEXT STARTS HERE

Appeal from Circuit Court, McPherson County; Joseph H. Bottom, Judge.

Action by W. H. Lile against Samuel Barnes. From a judgment for plaintiff, defendant appeals. Reversed.

Corson, J., dissenting in part.E. C. Sigler, of Leola, and Campbell & Walton, of Aberdeen, for appellant.

A. L. Bartlett, of Leola, and James M. Brown, of Aberdeen, for respondent.

WHITING, J.

This is an appeal by the defendant from a judgment in favor of the plaintiff. The action was one in replevin to recover the possession of three two year old heifers which the plaintiff claimed to own and which he alleged were wrongfully detained by the defendant at the time of the commencement of the action. The case was tried by the court with a jury and a verdict returned in favor of the plaintiff. At the close of plaintiff's evidence the defendant moved for the direction of a verdict in his favor, which motion was denied by the court, and to which ruling the defendant excepted. This motion was renewed at the close of all the evidence, and the ruling of the court in denying the former motion for the direction of a verdict is assigned as error.

[1] It is contended by the respondent that upon the record in this case none of the matters urged by the appellant are properly here for review for the reason that, “the appeal in this case having been taken from the judgment alone, and the order denying the motion for a new trial having been made after the entry of judgment herein, and it not having been appealed from, the decision of the court below upon the question of the sufficiency of the evidence to justify the verdict will be res judicata, as an appeal from the judgment alone does not bring up for review such an order, when made after judgment, and as there are no assignments of error save and except those relating to the sufficiency of the evidence to support the verdict,” and the order overruling appellant's motion for the direction of a verdict.

The judgment appealed from was rendered and entered January 5, 1912, and the order denying defendant's motion for a new trial was made April 5, 1912, and filed the next day, April 6th. The appeal was taken from the judgment alone. The order denying the motion for a new trial having been made after the entry of judgment, and not having been appealed from, the decision of the court below upon the question of the sufficiency of the evidence to justify the verdict will not be considered by this court, as an appeal from the judgment alone does not bring up for review such an order when made after judgment. Gade v. Collins, 8 S. D. 322, 66 N. W. 466;Bourne v. Johnson, 10 S. D. 36, 71 N. W. 140;Parrish v. Mahany, 10 S. D. 276, 73 N. W. 97, 66 Am. St. Rep. 715;Stephens v. Faus, 20 S. D. 367, 106 N. W. 56;Aultman, Miller Co. v. Becker, 10 S. D. 58, 71 N. W. 753;Barcus v. Prokop, 135 N. W. 756;Hawkins v. Hubbard, 2 S. D. 631, 51 N. W. 774;Manufacturing Co. v. Galloway, 5 S. D. 205, 58 N. W. 565.

[2] However, on an appeal from the judgment when there has been a motion for the direction of a verdict at the close of plaintiff's evidence and renewed at the close of all the evidence, this court will review the evidence for the purpose of determining whether or not the court erred in denying the motion where the same has been settled by a bill of exceptions or transcript required under the present law, notwithstanding no motion for a new trial has been made in the action and no appeal taken from the order denying a new trial. Dunn v. National Bank of Canton, 11 S. D. 305, 77 N. W. 111;Westphal v. Nelson, 25 S. D. 100, 125 N. W. 640;Grasinger v. Lucas, 24 S. D. 42, 123 N. W. 77. It appears from the record in this case that it contains a transcript of the evidence settled and certified to by the court under the provisions of chapter 15 of the Laws of 1911. Hence it becomes our duty to examine the evidence for the determination...

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19 cases
  • Keyes v. Baskerville
    • United States
    • Supreme Court of South Dakota
    • December 27, 1919
    ......Faus, 20 S. D. 367, 106 N. W. 56;Subera v. Jones, 20 S. D. 628, 108 N. W. 26;Heald v. Strong, 24 N. D. 120, 138 N. W. 1114;Lyle v. Barnes, 30 S. D. 647, 139 N. W. 338;Lee v. Clark Imp. Co., 31 S. D. 581, 141 N. W. 986;Cranmer v. Christian, 40 S. D. 202, 166 N. W. 1086. See, also, Hayne, ......
  • Hays v. Robinson
    • United States
    • United States State Supreme Court of Idaho
    • March 20, 1922
    ...... it is necessary to prove a demand before suit is brought. (. Roach v. Binder, 1 Colo. 322; Lyle v. Barnes, 30 S.D. 647, 139 N.W. 338; Anderson v. Pendl, 153 Mich. 693, 117 N.W. 326; Kellogg v. Olson, 34 Minn. 103, 24 N.W. 364; Becker v. Vandercook, 54 ......
  • Keyes v. Baskerville
    • United States
    • Supreme Court of South Dakota
    • December 27, 1919
    ...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, §§ There is an exception to this rule whe......
  • Federal Land Bank v. Houck
    • United States
    • Supreme Court of South Dakota
    • May 27, 1942
    ...upon the ruling of the trial court upon a motion for directed verdict has long been recognized by our adjudications, Lyle v. Barnes, 30 SD 647, 139 NW 338; Warwick v. Bliss, 45 SD 388, 187 NW 715; Wolff v. Stenger, 59 SD 231, 239 NW 181, and is preserved by SDC 33.0710. See Chambers v. Wils......
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