Miller v. Scholten

• Decision Date: 05 January 1979
• Docket Number: No. 12173,No. 12169 and D,12173,Nos. 12169,No. 12169 and P,12169 and P,12169 and D,s. 12169
• Citation: 273 N.W.2d 757
• Parties: Ernest MILLER and Marlys Miller, Plaintiffs and Respondents,laintiffs and Cross-Appellants,, v. Leonard SCHOLTEN and Viola Scholten, Defendants and Appellants,efendants and Cross-Respondents,.
• Court: South Dakota Supreme Court

Page 757

273 N.W.2d 757

Ernest MILLER and Marlys Miller, Plaintiffs and Respondents No. 12169 and Plaintiffs and Cross-Appellants, No. 12173, v. Leonard SCHOLTEN and Viola Scholten, Defendants and Appellants, No. 12169 and Defendants and Cross-Respondents, No. 12173.

Nos. 12169, 12173.

Supreme Court of South Dakota.

Jan. 5, 1979.

Michael B. Crew of Crew Law Offices, Vermillion, for plaintiffs and respondents, No. 12169 and plaintiffs and cross-appellants, No. 12173.

Everett A. Bogue of Bogue, Weeks & Rusch, Vermillion, for defendants and appellants, No. 12169 and defendants and cross-respondents, No. 12173.

WOLLMAN, Chief Justice.

Plaintiffs brought this action seeking a declaration that a certain road leading to their property had been dedicated to the public for use as a public road. In the alternative, plaintiffs asked for a judgment barring defendants from interfering with plaintiffs' use of the road. The trial court entered findings of fact, conclusions of law, and judgment granting plaintiffs a prescriptive easement across defendants' property for the purposes of ingress and egress to plaintiffs' property. Defendants have appealed. Plaintiffs have cross-appealed, contending that the trial court erred in not adopting their proposed findings of fact and conclusions of law to the effect that the road in question had been dedicated by defendants to the public and that the road was being held by the local township for use as a public road.

Before we consider the merits of the appeal and cross-appeal, we must deal with defendants' motion to dismiss plaintiffs' cross-appeal. Defendants contend that because plaintiffs prevailed at trial they are not entitled to appeal from a judgment in their favor. We do not agree. This case was presented to the trial court by the plaintiffs on inconsistent alternate theories of relief. Plaintiffs did not make an election between these theories; hence, it was left to the trial court to determine what relief was appropriate. Bernstein v. United States, 10 Cir., 256 F.2d 697; E. H. Boly & Son, Inc. v. Schneider, 9 Cir., 525 F.2d 20, 23 n. 3.

First, it should be noted that SDCL 15-6-8(a) ¹ allows a party claiming relief to demand relief in the alternative or of several different types. The forms of relief demanded need not be consistent. SDCL 15-6-8(e)(2). As in the present case, counsel may not be able to determine with certainty which of two closely related but inconsistent forms of relief the evidence will show his client to be entitled to, and therefore it is proper for trial to proceed upon both theories. 5 Wright & Miller, Federal Practice and Procedure § 1283 at 372-373.

Second, SDCL 15-6-54(c) ² places upon the trial court the duty to render final judgment granting the relief to which the party in whose favor it is rendered is entitled. This duty is to be discharged in a nondefault judgment even though the party receiving relief did not request such relief in its pleadings. In deciding what relief the prevailing party is entitled to the party's prayer for relief is irrelevant. Equity Capital Co. v. Sponder, 5 Cir., 414 F.2d 317, 319 n. 1. This court has held that granting relief not specifically requested in the plaintiff's prayer is proper in a nondefault case where the relief so granted was consistent with the case alleged in the complaint and proven at trial. Woodford v. Kelley, 18 S.D. 615, 101 N.W. 1069; Bekker v. White River Valley Ry. Co., 28 S.D. 84, 132 N.W. 797; Walkon Carpet Corp. v. Klapprodt, S.D. 231 N.W.2d 370. In a recent case, American Property Services v. Barringer, S.D., 256 N.W.2d 887, we said: "(I)f under the facts as established by the evidence, a claimant is entitled to (specified relief), the trial court should grant such relief even though it was not contained in the prayer for relief." 256 N.W.2d at 892. The caveat contained in that case is worthy of repetition here. "However, the relief to be granted under SDCL 15-6-54(c) is not unlimited, and such relief Must be based upon the facts alleged in the pleadings and justified by the proof at trial." 256 N.W.2d at 892 (emphasis added). Because, the party in whose favor judgment is rendered has a right to the relief the evidence proves he is entitled to, even though he did not request such relief, it follows A fortiori that where a party has requested the relief the evidence proves he is entitled to, it is error for the trial court to refuse such relief.

The effect of allowing the trial court to elect between plaintiffs' inconsistent alternative forms of relief and then not allowing plaintiffs to appeal the trial court's decision would be to bind plaintiffs to their prayer for relief. It is clear that for Rule 54(c) to have any effect plaintiffs may not be bound by their prayer for relief. As stated in United States v. Metro Development Corp., N.D.Ga., 61 F.R.D. 83, 86:

Although Rule 8(a)(3), Fed.R.Civ.P. requires as an essential part of a complaint a demand for judgment for the relief to which the plaintiff deems himself entitled, Rule 54(c), Fed.R.Civ.P. makes it clear that such a prayer does not bind the party . . . .

See also Ring v. Spina, 2 Cir., 148 F.2d 647, 653. This analysis is in keeping with the United States Supreme Court's view of the modern rules of procedure.

The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80, 86.

In Morton Buildings of Neb., Inc. v. Morton Buildings, Inc., 8 Cir., 531 F.2d 910, plaintiff alleged certain anti-trust violations against defendant. The district court ruled that defendant's defense of a voluntary termination agreement defeated plaintiff's claim. In a post-trial motion to amend the judgment, plaintiff requested a judgment in its favor for profits due under the agreement. The district court denied the motion on the basis that plaintiff's theory of the case did not encompass this type of relief. The Court of Appeals for the Eighth Circuit, construing Fed.R.Civ.P. 54(c) (identical with SDCL 15-6-54(c)), stated:

We believe (plaintiff) adequately developed his right to the profits at trial. Although (plaintiff) did not specifically request this form of relief in his complaint, the law clearly provides that a plaintiff is not strictly bound by the prayers for relief in the complaint; the trial court is obligated to enter judgment in favor of plaintiff for any appropriate relief mandated by the evidence adduced at trial. Williams v. United States, 405 F.2d 234, 238 (5th Cir. 1968); Nagler v. Admiral Corp., 248 F.2d 319, 328 (2d Cir. 1957); J. Moore, Federal Practice P 54.62 (1975); Fed.R.Civ.P. 54(c); Cf. Armstrong Cork Co. v. Lyons, 366 F.2d 206, 209-10 (8th Cir. 1966). 531 F.2d at 919.

The court remanded for entry of judgment as demanded by plaintiff. See also Troutman v. Modlin, 8 Cir., 353 F.2d 382.

In the present case, plaintiffs sought a declaration that the road in question was a public way; evidence adduced at trial proves that plaintiffs were entitled to such declaration. The trial court refused to enter judgment to that effect but instead elected to apply plaintiffs' alternative theory of relief. This action by the trial court was prejudicial to substantial rights of the plaintiffs, and as a practical matter plaintiffs did not receive the relief to which they were entitled and should, therefore, be allowed to appeal. Aetna Casualty & Surety Co. v. Cunningham, 5 Cir., 224 F.2d 478, 480. We note that there are cases in which courts have held that where a plaintiff seeks inconsistent alternate forms of relief he may not appeal from a judgment granting one of the requested alternatives on the ground that plaintiff has received that which he requested. Bell Rose Sanitarium v. Metz, 246 Or. 475, 425 P.2d 168; Printup v. Smith, 212 Ga. 501, 93 S.E.2d 679; Coluzzi v. Reserve Ins. Co., 68 Mich.App. 524, 243 N.W.2d 906; Dow v. McVey, 174 Iowa 553, 156 N.W. 706; Fugate v. Walker, 204 Ky. 767, 265 S.W. 331; Dillon v. Wentz, 227 N.C. 117, 41 S.E.2d 202. Some of these cases were decided prior to the general adoption of rules similar to Fed.R.Civ.P. 54(c) and others failed to consider the ramifications of this rule when applied to the alternative relief problem.

The requirement that the right of appeal runs only to an "aggrieved party" has had an interesting history in South Dakota jurisprudence. In a very early opinion, Woods v. Pollard, 14 S.D. 44, 84 N.W. 214, the court, citing no authority, said that because the decision of the trial court was in favor of the defendant he was not aggrieved and hence had no right of appeal. In 1919 the requirement that only an aggrieved party has a right to appeal was adopted by the legislature. Revised Code of 1919 § 3145. This court next addressed the matter in 1923 in Severin v. Medearis, 46 S.D. 408, 193 N.W. 138. There, citing the 1919 Code, we said an order granting a new trial to plaintiff did not aggrieve him, and hence he had no right of appeal. The requirement was abandoned by the legislature in 1939, SDC 33.0701, and it has not reappeared in subsequent revisions of the code. In 1943, the court in Nilsson v. Krueger, 69 S.D. 312, 9 N.W.2d 783, citing Woods v. Pollard, supra; and Severin v. Medearis, supra, stated: "A party cannot appeal from a judgment or decree in his favor since he is not thereby aggrieved." 69 S.D. at 314, 9 N.W.2d at 785. In Carlson v. West River Oil Co., 75 S.D. 333, 64 N.W.2d 294, it was brought to the attention of the court that the 1939 revision of the Code had abandoned the requirement that a party be aggrieved in order to appeal. In that case, a taxpayer-resident of Faith, South Dakota, brought suit on behalf of the municipality against the oil company, alleging that its owner was a member of the city council at a time when...