Neeley v. Roberts

• Decision Date: 01 July 1903
• Citation: 17 S.D. 161,95 N.W. 921
• Parties: THOMAS NEELEY, Plaintiff and appellant, v. DAVID E. ROBERTS, Defendant and respondent.
• Court: South Dakota Supreme Court

17 S.D. 161

95 N.W. 921

THOMAS NEELEY, Plaintiff and appellant,

v.

DAVID E. ROBERTS, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Hughes County, SD Hon. Loring E. Gaffy, Judge Reversed John A. Holmes Attorneys for appellant. U. S. G. Cherry Attorneys for respondent. Opinion filed July 1, 1903

HANEY, P. J.

On November 27, 1891, the parties to this action entered into a written contract, whereby it was agreed that the plaintiff should keep and care for a flock of sheep belonging to the defendant for five years, and then receive one-half of the flock for his services. At the end of the contract period, the sheep and their increase having been kept and cared for by the plaintiff, and being still in his possession, a controversy arose regarding the division of the flock and the adjustment of numerous items of account. No settlement was effected. All the sheep then living and not sold remained with the plaintiff, and about one month later this action was commenced. The complaint herein, as originally drawn, set forth the contract in extenso, the keeping and caring for the sheep for the period in the manner prescribed by the contract, and defendant’s neglect and refusal to divide and receive his share of the flock at the end of such period. It was also alleged therein as a second cause of action that the plaintiff was a farmer; that as such he had herded, fed, and cared for certain sheep belonging to the defendant since November 27, 1896 (the end of the contract period); that such herding, etc., was reasonably worth certain sums, and that no part thereof had been paid. Upon the second cause of action the plaintiff demanded judgment establishing and foreclosing his herder’s lien. Upon the first cause his demand of relief was as follows:

“(1) That the said contract and agreement so made and entered into by and between the plaintiff and defendant, hereinbefore set out, may be specifically performed as to all of said sheep so remaining in plaintiff’s possession, after the payment of the amounts found due plaintiff, as alleged in his said second cause of action, with costs, as demanded in said cause of action; and that plaintiff have all other proper relief.”

The defendant answered, admitting the making of the contract and keeping of the sheep by the plaintiff during the time agreed upon therein; alleging that the sheep were not properly cared for, that the plaintiff had failed and refused to account for sheep sold by him and for wool clipped therefrom, and that he had refused to deliver to the defendant his share of the flock at the termination of the contract period; wherefore the defendant prayed that an accounting be taken and had by and before the court between the plaintiff and defendant of all things growing out of and connected with the contract; that a lien upon the sheep in favor of the defendant to the extent of his interest therein be established; that a receiver be appointed to take possession of the property, with authority to convert the same into cash, to be applied to the payment of expenses and the interest of each party as the court should find such interest to be; and for such other and further relief as might be deemed just and equitable. The plaintiff replied with a general denial. After the issues were thus joined, the defendant moved the court to appoint a receiver, on the hearing of which motion an order was made enjoining the plaintiff from selling or otherwise disposing of any of the sheep until otherwise ordered, and appointing Ivan W. Goodner, Esq., referee, with authority to bring the cause on for trial, to receive such competent and material evidence as might be produced before him, and to report the same to the court with his findings of fact and conclusions of law thereon. In October, 1897, the cause was regularly heard by the referee, who in due time made and filed his report, his decision being favorable to the plaintiff.

In November, 1897. the defendant moved the court on all the proceedings theretofore had in the action, the report of the referee, the transcript, and the report of the evidence taken therein and the exceptions filed therein, “to reject and set aside the findings of fact and conclusions of law of said referee, and for a judgment therein in favor of the defendant and against the plaintiff as prayed for in defendant’s answer;” and the plaintiff moved the court “for judgment upon said referee’s report in accordance with his findings of fact and conclusions of law contained in said report.” On January 6, 1898, the court made the following order, to which proper exceptions were saved by the plaintiff:

“This cause coming on for hearing upon the notice of motion of the plaintiff to confirm the report made and filed herein by the referee heretofore duly appointed in this action, and upon the cross-motion of the defendant for judgment against the plaintiff, the plaintiff appearing by his attorney, John A. Holmes, and the defendant appearing by U. S. G. Cherry, and the court, being advised in the premises, finds:

(1) That the action is improperly brought, being an action for a specific performance relating to personal property, and in which plaintiff had a remedy at law.

(2) That the report of the referee should not be confirmed, as there is nothing in the evidence to show the court that the plaintiff is entitled to the specific performance of the contract. And the report of the referee herein is set aside, and the case will stand for further order or proceeding. And the restraining order heretofore granted in this case against the plaintiff is continued in force until the further order of the court, with this exception, that the plaintiff shall be allowed, and he is hereby allowed, to sell and dispose of one hundred head of wethers of said flock of sheep at the highest price obtainable therefor, the money so obtained to be used by the plaintiff in caring for the flock of sheep in controversy.”

From so much of this order as set aside the referee’s report an appeal was taken to this court by the plaintiff, which was dismissed for the reason that the order had not been entered when the appeal was taken. Neeley v....