Macgregor v. Pierce

• Decision Date: 03 June 1903
• Parties: JOHN ANGIER MacGREGOR, Plaintiff and appellant, v. JOHN T. M. PIERCE and ANNA W. PIERCE, Defendants, and Orr McCausland, Defendant and respondent.
• Court: South Dakota Supreme Court

15 S.D. 51

95 N.W. 281

JOHN ANGIER MacGREGOR, Plaintiff and appellant,

v.

JOHN T. M. PIERCE and ANNA W. PIERCE, Defendants, and Orr McCausland, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Yankton County, SD Hon. E. G. Smith, Judge Affirmed C. J. B. Harris Attorneys for appellants. French Orris Attorneys for respondent. Opinion filed June 3, 1903

FULLER, J.

At the trial of this action to foreclose a real estate mortgage the fee simple title, by virtue of a sheriff’s deed, was found to be in the defendant McCausland, and from a judgment accordingly entered, and an order denying a new trial, plaintiff, MacGregor, and the defendants Pierce appeal.

Before passing to the merits of the case, it is deemed necessary to determine the effect of appellants’ failure to serve a notice of intention to move for a new trial upon the adverse party. Section 5090 of the Compiled Laws of 1887 provided that:

“The party intending to move for a new trial must, within twenty days after the verdict of the jury, if the action were tried by a jury, or after notice of the decision of the court, if the action were tried without a jury, serve upon the adverse party a notice of his intention, designating the statutory grounds upon which the motion will be made and whether the same will be made upon affidavits, or the minutes of the court, or a bill of exceptions, or a statement of the case.”

To apprise adverse counsel of the grounds that will be relied upon at the hearing of a motion for a new trial is the purpose of such procedure, and in First National Rink of Pierre v. Comfort, 4 Dak. 173, it is stated that:

“The object being to give the opposite party time to prepare for the motion, the notice of intention must be given before the court can entertain the motion for a new trial.”

That, unless waived, there must be a notice of intention to move for a new trial, and that the statutory grounds relied upon must be designated therein, is very apparent from the case of Moddie v. Breiland,(1897), in which it is said:

“The party intending to move for a new trial must serve upon the adverse party a notice of his intention, designating the statutory grounds upon which the motion will be made.”

When as in this case, it affirmatively appears that there was no notice of intention, and that the motion for a new trial was made and overruled on the same day, and there is nothing in the authenticated record to indicate service of such motion upon opposing counsel, or their presence at the hearing, a waiver, as contended for by counsel for appellants, cannot be inferred. In construing a similar provision of the California Code in Rayne on New Trial and Appeal, at page 14 the author states, “Under the statute the notice of intention is the initiation and foundation of the proceedings to obtain a new trial.” There being no notice of intention, the court below was without authority to entertain the motion for a new trial, and the legal status of the case is that of an appeal from the judgment alone. Calderwood v. Brooks, 28 Cal. 151; Gregg v. Garrett, 13 Mont 10, 31 Pac. 721, As the judgment roll, containing, for the purposes of the appeal, a statement of the case, remains for consideration, errors of law occurring at the trial may be reviewed upon exceptions there preserved. Jones Lumber & Mer. Co. v. Faris, Sheriff, 55 AmStRep 814 (1894); LeClaire v. Wells,(1895); McCormick Harv. Mach. Co. v. Woulph,(1898); McCarthy v. Speed, 50 LRA 184 (1899). The facts either admitted or fairly established by the evidence may be stated thus: On the 1st day of December, 1888, Anna W. Pierce, being the fee-simple owner of the premises in dispute, gave G. W. Roberts a purchase-money mortgage thereon to secure the payment of $2,500, and 18 days later conveyed the property by warranty deed to her husband, who had joined her in the execution of such mortgage. On the 25th day of November, 1892, the husband and wife borrowed $2,500 of John MacGregor, the father of appellant Anna W. Pierce, and to secure the payment thereof executed the mortgage here sought to be foreclosed, and which, as a gift, the father duly assigned to his son, the appellant John Angier MacGregor, on the 16th day of March, 1896. On the 12th day of April, 1895, while this second mortgage remained wholly unsatisfied, Roberts regularly foreclosed his mortgage by virtue of a power of sale therein contained, and became the purchaser at $2,236.52. With full knowledge of the amount necessary to redeem from this foreclosure sale and the existence of appellants’ mortgage, A. T. Nation, the assignee of Samuel Kaye, a judgment creditor of appellant John T. M. Pierce, caused the premises to be sold at Sheriff’s sale on the 19th day of September, 1895, and, being the purchaser thereof for $120, the sheriff executed and delivered to Nation a certificate of sale in the usual form. In an action wherein respondent McCausland was plaintiff and John T. M. Pierce defendant, an attachment was levied upon the premises on the 20th day of November, 1894, and this action was prosecuted to a judgment for $4,462,17, which was duly entered on the 28th day of April, 1895. On the 1lth day of April, 1896—one day before the expiration of the year for redemption under the foreclosure proceedings of the Roberts mortgage—A. T. Nation, relying upon the subsequent lien of his judgment, redeemed from such foreclosure, and paid the sheriff $2,504,90, which amount Roberts received and retained in full satisfaction of his claim. On the 25th day of May, 1896, respondent McCausland, with actual notice of what steps had been taken, and relying upon the lien of his judgment, redeemed from the Roberts foreclosure sale, and paid the sheriff, for A, T. Nation, $2,672.30, which sum included the amount paid by Nation in order to redeem from such sale and the $120 paid by him at the execution sale, together with statutory interest on the respective amounts; and the sheriff thereupon executed to McCausland a certificate of redemption, which, on the 27th day of July, 1896, ripened into the Sheriff’s deed upon which he now relies. Neither of the appellants redeemed...