Moss v. Kaump
| Decision Date | 22 June 1937 |
| Docket Number | 8020 |
| Citation | 274 N.W. 120,65 S.D. 331 |
| Parties | WILLARD MOSS, Respondent, v. FRANK KAUMP, Appellant. |
| Court | South Dakota Supreme Court |
FRANK KAUMP, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Hyde County, SD Hon. John F. Hughes, Judge #8020Affirmed C. E. Noel, Highmore, SD Attorney for Appellant. M. Harry O’Brien, Highmore, SD Attorney for Respondent. Opinion filed June 22, 1937
On appeal from an order of the trial court granting a new trial, defendant asserts that the trial court was without jurisdiction to hear the motion.
Plaintiff claimed the delivery of certain property in the possession of the defendant. The verdict of the jury was entered June 17, 1936. After judgment on the verdict, and on the 26th day of June, A. D. 1936, plaintiff served a notice of intention to move for a new trial, assigning several of the statutory grounds, including the ground of insufficiency of the evidence to justify the verdict. By this notice of intention, plaintiff elected to base his motion for a new trial upon a settled record, and therefore failed to insert therein such specifications of the particulars, wherein the evidence was claimed’ to be insufficient to justify the verdict as is required under section 2557, R. C. 1919, in case of election to base such a motion on the minutes of the court. Thereafter, on August 3, 1936, and prior to the presentation of any motion for a new trial, the court entered an ex parte order reciting the desire of plaintiff to make a motion for new by upon the minutes of the court and stating that the court deemed, the ends of justice would ‘he served by permitting him so to do. Following these recitals, the court used the following words
“... Ordered that the time in which the Plaintiff may serve a notice of intention to move for a new trial be extended to the 26th day of August, 1936.”
This order was issued upon application of plaintiff, and upon the affidavit of plaintiff’s attorney in which the following language appears: ... that the plaintiff desires to present to the Court, a motion for a new trial upon the minutes of the Court, upon the grounds that the evidence is insufficient to sustain the verdict; that affiant has procured a copy of the Defendant’s testimony in this cause; that his evidence and testimony is all of the evidence offered by him in support of his claim of ownership of the property involved herein, which. consisted of two old ewe sheep, six yearling ewe sheep and one spring lamb; that it is affiant’s contention and opinion that the Defendant wholly failed to in any manner show ownership in him to one of the old ewes, and three yearling ewe sheep, confining his testimony to three yearling ewe sheep, one of which was awarded to Plaintiff by the verdict, and one of the old ewes; that the ends of justice will be better met if the Plaintiff be permitted to present to the Court, his motion for a new trial upon the minutes of the court. ...”
On August 12, 1936, respondent served a notice of intention stating several of the statutory grounds, including insufficiency of the evidence to justify the verdict. In this notice of intention, respondent included specifications of insufficiency of the evidence and stated that his motion for a new trial would be made upon “... the minutes of the court, and a transcript of the testimony of the Defendant Frank Kaump, and the stenographer’s notes of the testimony received in evidence herein, and the rulings of the Court, and upon the verdict returned by the jury,” etc. On August 15, 1936, a motion for a new trial and order to show cause bringing the same on for hearing on August 26, 1936, were served upon defendant’s attorney.
At the time for hearing on the motion for a new trial, defendant appeared specially and objected to the jurisdiction of the court to hear plaintiff’s motion on the grounds that the notice of intention served on June 26, 1936, failed to specify the particulars wherein the evidence was insufficient to support the verdict and that the subsequent notice of intention by August 12, 1936, was not timely served in that the order of the court attempting to extend the time in which to serve a new notice of intention to move for a new trial was made without jurisdiction. The court overruled the objections of appellant, and thereafter entered its order granting a new trial upon the ground of insufficiency of the evidence to support and sustain the verdict of the jury. During the lapse of time between the service of the first notice of intention and the hearing on the motion for a new trial, the court entered ex parte stay orders in which it was purported to extend the time “... in which, the Plaintiff may settle the record and make his motion for a new trial.”
That the timely service of a notice of intention is a condition precedent to the jurisdiction of the trial court to entertain the motion for a new trial has been established by this court. Fuller v. Anderson, 50, SD 568, 210, NW 992. We have also held, in construing section 25,56, R. C. 1919, that one intending to make a motion for a new trial must elect whether he will proceed upon a settled record or upon the minutes of the court. Thompson v. Chicago, M. & St. P. Ry. Co., 128 N.W. 809; Sully v. Egan, 211 N.W. 803; Stokes v. Rabenburg et al., 245 N.W. 492. The power of the trial court to permit amendment of a notice of intention is well established. Frank v. Ruzicka, 185 N.W. 371; Bunker v. Taylor et al., 74 N.W. 450.
In the instant case, a notice of intention to move for a new trial was served within twenty days...
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