Lounsberry v. Kelly

• Decision Date: 23 October 1913
• Parties: LOUNSBERRY et al. v. KELLY.
• Court: South Dakota Supreme Court

32 S.D. 456

143 N.W. 369

LOUNSBERRY et al.

v.KELLY.

Supreme Court of South Dakota.

Oct. 23, 1913.

On petition for rehearing. Former opinion corrected, and rehearing denied.

For former opinion, see 142 N. W. 180.

SMITH, J.

This case is before us upon petition for rehearing. The former opinion is reported in Lounsberry v. Kelly, 142 N. W. 180. We are of opinion the conclusion reached in that decision must be adhered to; but, in justice to appellants' counsel, deem it our duty to correct certain statements contained in the former opinion.

Upon the appeal, appellant's counsel sought to have reviewed certain instructions given by the court which were excepted to and the refusal of the trial court to give certain instructions requested by appellant's counsel at the trial. In that opinion this court said: “The failure to insert the instructions complained of and those refused in the statement of facts in appellant's brief would be sufficient alone, in any case, to warrant this court in disregarding errors in instructions.”

Appellant's original brief was filed on January 12, 1913, and did not in fact contain the instructions complained of, but thereafter, on March 15, 1913, on application to the presiding judge, an order was entered without objections, from respondent's counsel, permitting appellant to file an additional brief containing the instructions complained of and omitted from the original brief.

[1] In the preparation of the decision, the supplemental brief was inadvertently overlooked, and appellant's counsel were apparently negligent in having overlooked the decision of this court in State v. Doran, 28 S. D. 468, 134 N. W. 53, which was handed down on January 17, 1912. The purpose of this opinion is to correct the apparent injustice done appellant's counsel by our former decision. That decision, however, did not turn wholly upon the assumed omission of instructions sought to be reviewed, but was founded mainly upon the proposition that the judgment and findings appealed from were in an equity action; that the verdict was merely advisory to the court; and that in an equity suit error could not be predicated upon alleged errors in instructions to a jury. In the petition for rehearing, appellant's counsel challenge the correctness of this holding. Appellant's counsel insist that, “if from all the pleadings there was a question of fact to which the defendant is entitled to a jury, he cannot be deprived of it, and that in this case...