Lounsberry v. Kelly

• Decision Date: 24 June 1913
• Citation: 142 N.W. 180,32 S.D. 160
• Parties: SAMUEL N. LOUNSBERRY et al., Plaintiffs and respondents, v. E. J. KELLY, Defendant and appellant.
• Court: South Dakota Supreme Court

32 S.D. 160, 142 N.W. 180 (1913)

SAMUEL N. LOUNSBERRY et al.,

Plaintiffs and respondents,

v. E. J. KELLY,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Codington County, SD

Hon. Carl G. Sherwood, Judge

Affirmed

Sherin & Sherin

Attorneys for Appellant.

Case & Case

Attorneys for Respondents.

Opinion filed June 24, 1913; Rehearing denied October 23, 1913

SMITH, J.

Appeal from the circuit court of Codington county. Action for specific performance of a written contract for conveyance of real estate.

The answer alleges that the contract was procured by fraud and misrepresentation of the plaintiff. The issues of fact raised by the pleadings were submitted to a jury and a general verdict returned for plaintiff. The verdict of the jury was adopted by the trial court without objections to its sufficiency, and a decree entered awarding plaintiff the relief demanded. So far as the record discloses, neither party made request for findings of fact, nor is any question raised upon this appeal, either in the briefs of counsel or in the record, as to the sufficiency of the findings to sustain the judgment. No exception having been taken or question raised in the trial court, and no assignment of error having been made upon this appeal, this court will not consider the sufficiency of a general finding of fact upon all the issues.

Such finding in favor of plaintiff necessarily negatives the allegations of an affirmative defense. Custer County Bank v. Custer County, 18 S.D. 274, 100 N.W. 424.

Failure to make a finding upon an issue not appealed from is not reversible error. Wilson v. Wilson, 26 S.D. 182, 128 N.W. 120.

Appellant's counsel in their brief say the only questions sought to be reviewed are questions of law on the court's instructions when submitting the issues of fact to the jury and in the refusal of instructions requested by appellant.

Statements are found at the conclusion of appellant's brief which may be deemed sufficient as assignments of error in this court, but none of the matters referred to in such assignments are found in the printed abstract or brief. Neither the instructions given by the court on its own motion and excepted to, nor the instructions requested by appellant and refused by the trial court, are in the abstract or brief. This court is referred by the assignments of error to certain pages of the transcript, where the instructions referred to are said to be found, and to certain other pages where exceptions are to be found. The assignments also refer to certain other pages of the transcript upon which are said to be set forth specifications of error. Appellant's brief was filed on January 12, 1913. On January 17, 1912, this court handed down its ...