Nelson v. Jordeth

• Decision Date: 10 July 1901
• Parties: NELSON v. JORDETH et al.
• Court: South Dakota Supreme Court

87 N.W. 140

15 S.D. 46

NELSON v. JORDETH et al.

Supreme Court of South Dakota

July 10, 1901

Appeal from circuit court, Potter county; Loren E. Gaffy, Judge.

Action by John Nelson against Johanna Jordeth and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

John Wood, for appellant. A. L. Ellis and Albert Gunderson, for respondents.

HANEY J.

This is an action to determine conflicting claims to a quarter section of land in Potter county. Plaintiff alleges ownership in fee simple. His ownership is denied by defendants, who allege title in themselves. They also allege that the action is to set aside a tax deed recorded more than three years before it was commenced; that when they obtained title the land was unoccupied and uncultivated prairie; that they have made permanent improvements, in good faith, of the value of $1,912.50; that they have paid $132.94 in taxes upon the land; that the value of the land when they obtained title did not exceed $300; and that the land, without the improvements and taxes so paid, is not worth to exceed $167.06. A jury was sworn. At the close of all the testimony counsel moved the court to direct the jury to find for defendants for the following reasons: (1) Plaintiff has failed to make a prima facie case; (2) it appears from the testimony that defendants and their grantors have paid the taxes continuously for 10 successive years, they are in possession of valuable improvements, and they are the only ones who have been in possession for over 10 years under color of title; (3) more than three years have elapsed since the issuance of the tax deed; (4) no taxes have been paid or tendered by the plaintiff. He also moved the court "to take the case from the jury, and decide it upon the questions of law presented in this motion." Thereupon the trial judge appears to have stated his views of the law, and announced that "the judgment of the court is for the defendants for a dismissal of the action." The plaintiff excepted "to the ruling of the court upon each proposition made by the court in his ruling." Subsequently the court rendered the following decision in writing: "The court having heard all the testimony of the plaintiff and of the defendants, and the said parties having rested, the court finds that there is no issue for a jury. The jury is discharged, and the court finds the following: Findings of facts: (1) That prior to the year 1886 the plaintiff was the owner of, and had, the northeast quarter of section twenty-eight in township one hundred nineteen north, of range number seventy-four west of the 5th P. M., the land in controversy. (2) That the defendants are in possession of said land, and are the owners of a tax deed thereon; that the defendants and their grantors have paid the taxes on said land continuously for more than ten years prior to the commencement of this action, in good faith, under color of title; that the plaintiff had not paid or tendered any such taxes before the commencement of this action; that there is no testimony showing that said taxes were not justly due, or that said land was not subject to taxation. The court therefore finds as conclusions of law: (1) That the plaintiff has failed to make a prima facie case against the defendants that plaintiff's complaint should be dismissed, and that the title to said property should be quieted in defendants Jordeth."

Under our system of practice, there is a marked distinction between trials by the court and trials by jury,--a distinction which cannot be disregarded without causing confusion, especially in reviewing the record on appeal. In making and ruling upon defendants' motion at the close of the testimony this distinction was ignored. If the trial was by jury, the motion to direct a verdict should have been granted or denied, and the cause submitted to the jury. If the trial was by the court, the motion should have been denied as out of place for the reason that it is the duty of the court in all such cases to make and file its decision with the clerk, stating the facts found and conclusions separately. Comp. Laws, §§ 5066, 5067; Laws 1893, c. 72; Elevator Co. v. Lee (S D.) 83 N.W. 565. As the plaintiff did not object to the cause being withdrawn from the jury on the ground that he was...