Noyes v. Brace

• Decision Date: 16 April 1897
• Citation: 9 S.D. 603,70 N.W. 846
• Parties: NOYES v. BRACE et al.
• Court: South Dakota Supreme Court

9 S.D. 603

70 N.W. 846

NOYES

v.BRACE et al.

Supreme Court of South Dakota.

April 16, 1897.

On rehearing. Former decision reversed.

For former report, see 65 N. W. 1071.

HANEY, J.

In its former decision, this court assumed that “this is an action in the nature of a creditors' bill,” and reversed the judgment of the court below for rejecting evidence tending to show that in September, 1893, defendant Lowry possessed no property liable to levy or sale on execution other than that included in the mortgage which plaintiff, as a judgment creditor of Lowry, was attacking as fraudulent. 65 N. W. 1071. Treating the action as one in the nature of a creditors' bill, the conclusion of the court was correct; but it is evident from an inspection of the record that such was not the theory upon which the action was tried in the circuit court. The doctrine announced in Straw v. Jenks, 6 Dak. 414, 43 N. W. 941, had not then been disapproved (Manufacturing Co. v. Max, 5 S. D. 125, 58 N. W. 14;Jewett v. Downs, 6 S. D. 319, 60 N. W. 76); and the evidence was clearly offered for the purpose of showing that the mortgage, which was executed in 1891, should be regarded as a general assignment, within the principles supposed to be established by the case of Straw v. Jenks, and not for the purpose of showing that plaintiffs had exhausted their legal remedies. Considered in that light, it was properly rejected. It is elementary that appellate courts will not permit a case to be tried on appeal on a different theory than in the court below. Baird v. Woodard (Neb.) 61 N. W. 612;Moquist v. Chapel (Minn.) 64 N. W. 567. This court inadvertently permitted the appellants to present an entirely different theory upon appeal than was presented to the circuit court, and thus reversed the judgment of that court, upon a ground which it never passed upon. This was erroneous. Our former decision is reversed, and the judgment appealed from is affirmed.