Noyes v. Lane

• Decision Date: 19 March 1891
• Citation: 2 S.D. 55,48 N.W. 322
• Parties: Noyes et al. v. Lane.
• Court: South Dakota Supreme Court

2 S.D. 55

48 N.W. 322

Noyes et al.

v.Lane.

Supreme Court of South Dakota.

March 19, 1891.

Syllabus by the Court.

1. The rules of this court contemplate a carefully prepared abstract or abstracts, which shall take the place of the original record, for the purpose of the hearing and decision of the case.

2. The case will be heard and decided upon the facts so presented, and the original papers will not be examined in this court, except to settle a disagreement between abstracts.

Appeal from district court, Spink county.

Overruling 45 N. W. Rep. 327.H. C. & T. J. Walsh, C. T. Howard, and John B. & W. H. Sanborn, for appellants. N. P. Bromley and A. B. Melville, for respondent.

KELLAM, J.

This case was originally heard and decided at the February term, 1890, of this court, and is reported in 45 N. W. Rep. 327. As stated in the former opinion, it was submitted on the briefs and arguments in Drug Co. v. Lane, Id. 329. There was a printed abstract of the case, but no brief, except as by agreement the brief in the Drug Co. Case was considered and treated as a brief in this case. The case was an appeal from an order of the district court discharging an attachment. The printed abstract stated that the warrant of attachment was issued upon an affidavit charging that the defendant had “assigned, disposed of, and secreted his property, and was about to assign, dispose of, and secrete his property, with intent to defraud his creditors.” Defendant moved to discharge the attachment upon affidavits, which at least attempted to deny that he had or was about to assign or dispose of his property with such intent, but they were silent as to the charge of secretion. That was not denied. In the examination of the case after argument, upon referring to the original papers, and for the moment overlooking the abstract and its statements, we discovered that the original affidavit upon which the warrant was issued did not charge secretion, and that consequently defendant would not be required to deny it; and we decided the case upon what we found in the original papers, instead of upon the facts presented by the abstract, and in this we think we were wrong. Our rules of court contemplate a carefully prepared abstract, which will ordinarily take the place of the record, for the purposes of the argument and decision of the case. Rule 17 requires the appellant, or plaintiff in error, in all civil actions, to prepare, print, and serve upon the adverse counsel an abstract which shall set forth so much of the record in the cause as is necessary to a full understanding of all the questions presented to the court for decision. Rule 18 supplements this by providing that, if the respondent or defendant in error deems the abstract of the appellant or plaintiff in error imperfect or unfair, he may, in turn, prepare, print, and serve such additional abstract as he shall deem necessary to a full understanding of the questions presented. Said rule 17 sets out a very full and complete form for such abstract, thus emphasizing its importance. The obvious purpose of these rules is to provide an abstract or abridgment, which shall fairly exhibit so much of the record as will present the...