Marshall v. Harney Peak Tin Mining

• Decision Date: 03 December 1890
• Court: South Dakota Supreme Court
• Parties: MARSHALL et al. Plaintiff, v. HARNEY PEAK TIN MINING, MILLING & MANUFACTURING CO. et al. Defendant.

1 S.D. 350

47 N.W. 290

Milling & Mfg Co.,(1890)

MARSHALL et al. Plaintiff,

v.

HARNEY PEAK TIN MINING, MILLING & MANUFACTURING CO. et al. Defendant. South Dakota Supreme Court Appeal from District Court, Pennington County, SD Hon. Charles M. Thomas, Judge Reversed Van Cise & Wilson Schrader & Lewis Attorneys for appellants. James W. Fowler and B. Steele Attorneys for respondents. Argued Feb. 8, 1890. Opinion filed Dec 3, 1890

BENNETT, J.

This was an action of ejectment brought by appellants against respondents to recover possession of 750 feet of mining ground claimed by the parties under conflicting locations. A count for equitable relief was joined, and at the close of the testimony, when both sides had rested, the defendants’ counsel moved the court to instruct the jury to return a verdict for defendants. The motion was sustained, and the ruling was duly excepted to. The jury returned a verdict for the defendants, and judgment was entered accordingly, from which judgment the plaintiffs appeal.

At the threshold of the case we are met in this court with a motion to dismiss the appeal for irregularity in the notice of appeal and the undertaking. This will command our attention first. The notice of appeal is as follows:

“Territory of Dakota, first judicial district. In district court in and for the county of Pennington, D. T. Benjamin F. Marshall, et al., Plffs. and Appellants, vs. Harney Peak Tin Mining, Milling & Manufacturing Company, Deft. and Respondent. Please take notice that the plaintiffs, Benjamin F. Marshall, et al., in the above entitled action appeal from a judgment entered therein on the 17th day of November. 1887, in favor of the respondents against the appellants, dismissing the complaint on the merits of the action, and for four hundred seventeen dollars and ninety cents costs, and also from the order overruling the plaintiff’s motion for a new trial to the supreme court of the territory. Schrader & Lewis, Van Cise & Wilson, Attorneys for Appellants. To J. W. Fowler and McLaughlin & Steele, Attys. for Respondent, and Beale E. Padgett, Esq., Clerk of the District Court of the County of Pennington.”

The notice of appeal was accompanied with an undertaking. The objections made to the notice of appeal apply to the undertaking, but it need not be set out in full to consider them. The motion to dismiss is based upon the following grounds: First, that no notice of appeal has been served as provided by law; second, that no undertaking has been made, served, or filed as provided by law. The objections of respondents are directed to the irregularities in the notice of appeal, mainly relating to the style of the case appealed from, and the reference to the plaintiffs in the body of the notice. The title of the case in the notice of appeal is “Benjamin F. Marshall, et at., Plffs. and Appellants, vs. Harney Peak Tin Mining, Milling & Manufacturing Company, Deft. and Respondent.” In the body of the notice of appeal, it says: “Please take notice that the plaintiffs, Benjamin F. Marshall, et at., in the above entitled action appeal from a judgment entered therein on the 17 day of November, 1887, in favor of respondents against the appellants,” etc. By reference to the transcript, it appears that a cause was filed in the Pennington county district court, entitled “Benjamin F. Marshall. Edward Cunningham, and William Franklin, Plaintiffs, vs. The Harney Peak Tin Mining, Milling & Manufacturing Company and Stephen W. Fullerton, Defendants.” In due course of time, the cause came on for trial, and a judgment was rendered, under the direction of the court, “in favor of said defendants,” the Harney Peak Tin Mining, Milling & Manufacturing Company, upon the issues, and that the defendants have and recover of and from said plaintiffs the costs of the action, amounting to the sum of $417.90. It is from this judgment that the appellants wish to appeal. The respondents insist that the notice of appeal does not mention all of the plaintiffs, or all of the defendants, in the action in the court below, and is therefore defective. The judgment dismissing the complaint on the merits is for the defendant, the Harney Peak Tin Mining, Milling & Manufacturing Company by name, and for it solely. So also is the judgment quieting title, and for possession of the property. The award for costs is to the defendants. This, no doubt, under ordinary circumstances, would relate to all the defendants in the case, and Stephen W. Fullerton, being one of the defendants, would have an interest in the determination of the suit, and be an interested party in the appeal. The judgment in the court below, so far as the costs of the suit were concerned, was in his favor, and a reversal of the judgment upon appeal might affect his rights to this extent. He was an adverse party, upon whom notice of appeal should be served. Has a service been made upon him? As a service upon an attorney of record of the party is sufficient, we must hold that there has been. All the defendants in the case appeared by J. W. Fowler, Esq., their attorney. Their answer is signed by him. The notice of appeal is served upon him, and he admits it over his signature. But respondents insist that inasmuch as the name of Samuel W. Fullerton, as one of the defendants, was omitted from the title of the notice of appeal, the notice not being directed to him, the admission of service could have no binding effect, except as to the Harney Peak Tin Mining, Milling and Manufacturing Company, the defendant named. The answer of the defendants in the court below was a general one. No separate answer of defendant Fullerton was filed. His appearance there was in connection with the Harney Peak Tin Mining, Milling and manufacturing Company; and in the answer he disclaimed any interest in the issues before the court. and, so far as they were concerned, he could have been left out of the case entirely. His interest, if any, in the appeal is only as to the costs, and while it is true that Fullerton has not been expressly named in the caption as defendant and respondent, yet the body of the notice of appeal sufficiently refers to the judgment, and the date of its rendition, and the court in which it was rendered, so that the respondents are intelligently informed from what, and for what, the appeal is taken, and no mistake can be made as to the intent of the appellant.

Again, it appears from the record that the defendants have appeared in this appellate tribunal and submitted to continuances by stipulations signed by their attorneys, and to other proceedings, and by filing briefs upon the merits of the appeal. While it is true that service of the notice of appeal is a jurisdictional question, which can be taken advantage of at any time, yet these positive acts of submission to this court must be considered as appearance sufficient to give this court jurisdiction of the appeal. We must say, however, that we have arrived at this conclusion with some degree of hesitation and doubt, but owing to the large amount of interests involved in the action, and the further fact that, should this motion be sustained, more than two years having elapsed since the rendition of the judgment, the right of appeal to the plaintiff would be barred by the statute of limitations, we have concluded to give the benefit of the doubt to the appellant, with the cautionary admonition to parties litigant and their attorneys to be more careful and painstaking in drafting and serving jurisdictional papers, as the rule is that these are to be strictly construed. Motion to dismiss overruled.

Upon the merits of the appeal, the question is whether the plaintiffs’ evidence made such a case as should go to the jury, or whether the undisputed evidence required a verdict for defendants, conceding to plaintiffs’ disputed evidence all the weight that could be given to it, and every reasonable presumption arising from it. The general rule is that on an application to take the case from the jury, whether by motion for a nonsuit, or the direction of a verdict, or by demurrer to evidence, the evidence of the opposite party must be assumed to be true, and he is to be given the benefit of all legitimate inferences therefrom in his favor. Myers v. Dixon, 45 How. Pr. 48; Cook v. Railroad Co., 1 Abb. Dec. 432; Maynes v. Atwater, 88 Pa. St. 496; Walker v. Supple, 54 Ga. 178-180; Parks v. Ross, 11 How. 373; Purcell v. English, 86 Ind. 34; Christie v. Barnes, 33 Kan. 317, 6 Pac. 599. Inasmuch as this rule is not generally accepted or followed by the bar of this state, we have concluded to somewhat elaborate the principles upon which it is based by citation of authorities. Judge Thompson, in his able work on Trials, § 2267, says:

“The demurrer to evidence, used in the ancient common law practice, seems to have passed, for the most part, out of use in American jurisdictions. In the place of it, the defendant moves for a nonsuit, or requests the court to give a peremptory instruction to the jury to return a verdict for the defendant. In either case, the effect is substantially the same as a demurrer to the evidence under the ancient practice. An order of nonsuit, or a peremptory instruction, given in compliance with such a motion, does not undertake to decide any question of fact, but simply pronounces the law arising upon the evidence, admit ting the same to be true. … Like the ancient demurrer to evidence, a motion for a judgment of nonsuit, or for a peremptory instruction to return a verdict for the defendant, admits everything which the evidence fairly tends to prove, but challenges its sufficiency in law.” Citing Railroad Co. v. Lewis, 109 Ill. 121; Stone v. Railroad Co., 47 Iowa, 82; Wolf v. Washer, 32 Kan. 533, 4 Pac. 1036; Bequillard v. Bartlett, 19 Kan. 382; Doane v. Lockwood, 115 Ill. 490, 4 N.E. 500. Everything will, be taken against the party demurring or making the motion to direct a verdict, which...