Mettel v. Gales

• Decision Date: 02 March 1900
• Parties: JOHN METTEL et al, Plaintiff and , v. MIKE GALES et al., Defendant and.
• Court: South Dakota Supreme Court

12 S.D. 632

82 N.W. 181

JOHN METTEL et al, Plaintiff and ,

v.

MIKE GALES et al., Defendant and. South Dakota Supreme Court Appeal from Circuit Court, Aurora County, SD Hon. Frank B. Smith, Judge Reversed. H. F. Fellows Attorneys for appellant. A. H. Henneous and S.Bakewell Attorneys for respondents. Opinion filed March 2, 1900

FULLER, P. J.

Before proceeding to the merits of this case, we will dispose of a motion to dismiss the appeal for the following reasons: “(1) That a copy of the undertaking on appeal was never served on the respondents, or their attorneys or either of them; (2) that the order denying a new trial herein was not entered, and made a permanent record of the court below, until after this appeal was taken.” By respondents’ additional abstract we are referred to the record, which shows due admission of service on the back of the original undertaking, and the objection made to the copy served on the adverse party is merely technical, at d without merit. We further find from an examination of the record that on the 18th day of May, 1898, the appeal was taken from the judgment and order overruling a motion for a new trial, and that such order was never entered until nine months thereafter. That no appeal lies until the judgment or order has been entered as a permanent record of the court below, and that no question as to the sufficiency of the evidence to justify the verdict is presented for review when the order denying a new trial, made after judgment, was not so entered, has been uniformly held. Pierce v. Manning, 51 NW 332; Hawkins v. Hubbard, 51 NW 774; Plow Co. v. Bellon, 57 NW 17; Evenson v. Webster, 53 NW 747; Gade v. Collins, 66 NW 466; State v. Lamm, 69 NW 592; Sinkling v. Railway Co., 74 NW 1029; Chamberlain v. Hedger, 73 NW 75; Coburn v. Board, 74 NW 1026; Machine Co. v. Skau, 75 NW 199; Bourne v. Johnson, 71 NW 140; Parrish v. Mahany, 73 NW 97; Haggarty v. Strong, 74 NW 1037. In Martin v. Smith, 78 NW 1001, the proposition is discussed, and the decisions of other states having similar statutory provisions on the subject of appeals are collated. As the case must be treated as though no appeal from the order denying a new trial was attempted, the sufficiency of the evidence to justify the verdict will not be considered. Under. the first provision of the original written contract made the basis of this action respondents were bound, in consideration of $1,500, to sink, encase, and fully equip an artesian well for appellant, Mike Gales, as follows:

“The size of the well must be four and one half (4½) inches, and wrought iron pipe of good quality must be used, and said pipe to be a continuous string from top to bottom, with tight joints, which shall be connected by good and substantial couplings; and. the workmanship thereof shall be performed in workmanlike manner.”

Reserving to Mike Gales the right to have an expert determine the possibility of completing the well as above specified, the following stipulation was made a part of the original contract:

“It is further agreed between the within contracting parties that, should it be impossible to furnish this well with 4½-inch piping, said second party is permitted to finish this well with three (3) inch casing, in which case said first party agrees to pay for the within contracted well nine hundred and fifty dollars ($950.00).”

After drilling 830 feet, where a very strong flow of water was obtained, and at a time when the well contained 795 feet of 4½-inch casing resting on solid rock, placed there in strict conformity with the first provision of the foregoing contract, it is alleged, and the evidence tends strongly to show:

“That shortly after the said artesian flow of water was obtained, and while the said well was in the condition last above described, the plaintiff and the defendant Mike Gales entered into an oral and mutual agreement whereby the written contract above set out was modified and changed, by the terms of which agreement the plaintiff agreed to case the lower or bottom 35 feet of said well with 3¾-inch perforated casing, and the defendant Mike Gales agreed and promised to accept the 3¾-inch casing in lieu of 4½-inch casing for the said 35 feet at the bottom of the said well; that, after the said oral agreement was made, the plaintiff, with the assistance of the defendant Mike Gales, cased the said bottom 35 feet of said well with 3¾-inch perforated casing, being the same kind as agreed upon in the said oral agreement, and the said defendant Mike Gales accepted the said 35 feet of 3¾-inch casing for the bottom 35 feet of said well in lieu of the 4½ inch casing described in the written contract above, and has constantly and continuously used and appropriated the water from said well for all purposes, including domestic and irrigating purposes; that the plaintiff and the defendant entered into an oral agreement on or about the time flow of water as aforesaid was reached, by the terms of which the plaintiff agreed to take out of the said well the top 140 feet of the said 795 feet of 4½-inch casing, and leave in lieu thereof as and for the casing of said 140 feet a string of casing 6 inches in diameter, commencing at the top of the said well, and running down into the same 210 feet, overlapping the 4½-inch casing 70 feet on the outside thereof, and the defendant Mike Gales agreed, to accept the said 6 inch casing placed in said well as aforesaid in lieu of the 4½ inch casing described in said contract; that the plaintiff cased the said 140 feet of the well at the top thereof with the said 6-inch casing as per said oral agreement, and the defendant Mike Gales accepted the said 6-inch casing in lieu of the 4-inch casing described in the written contract, and accepted it according to and by reason of the said oral agreement.”

It is conceded that respondents have received from appellant $1,225 of the $1,500 claimed, but he denies specifically that the...