Nw. Elevator Co. v. Lee

• Decision Date: 02 October 1901
• Citation: 87 N.W. 581,15 S.D. 114
• Parties: NORTHWESTERN ELEVATOR CO. v. LEE et al.
• Court: South Dakota Supreme Court

15 S.D. 114

87 N.W. 581

NORTHWESTERN ELEVATOR CO.

v.LEE et al.

Supreme Court of South Dakota.

Oct. 2, 1901.

On rehearing. Affirmed.

For former opinion, see 83 N. W. 565.

CORSON, J.

This case was decided at a former term of this court, and is reported in 13 S. D. 450, 83 N. W. 565. A petition for rehearing was granted, and the case is now before us on the rehearing. The case was decided upon the theory that no motion for a new trial had been made, and therefore the evidence could not be reviewed by this court. The appellant strenuously insisted in his petition for a rehearing, and on the reargument, that this court was in error in so holding; but we are of the opinion that the court was clearly right in its former decision. As will be seen from the former opinion, the case was tried by the court without a jury. At the close of the appellant's evidence, the respondents moved for a dismissal of the action, upon the ground that the evidence shows that the property in question, which was assessed, and of which assessment the appellant complains, was in the county of Codington on the 1st day of May, and was in the possession of the appellant, and was subject to assessment as against the appellant. The court sustained the motion, and found the facts in favor of the respondents, and entered judgment dismissing appellant's appeal and the action.

Section 5066, Comp. Laws, provides: “Upon the trial of a question of fact by the court, its decision must be given in writing and filed with the clerk within thirty days after the cause is submitted for decision, and no judgment shall be rendered or entered until after the filing of such decision.” It will be noticed that, by this section, upon a trial of a question of fact by the court, its decision must be given in writing, and that no judgment shall be rendered or entered until after the filing of such decision. This section applies to the cases where the action is dismissed, as well as where the judgment is in favor of the defendant, as no exception is made. Section 5067, Id., provides: “In giving the decision the facts found and the conclusions must be separately stated. Judgment upon the decision must be entered accordingly.” Section 5068, Id., provides: “Findings of fact may be waived by the several parties to an issue of fact: 1. By failing to appear at the trial. 2. By consent in writing, filed with the clerk.” In the case at bar the parties appeared at the trial and there was no consent in writing waiving findings. The court entered a judgment, which, after reciting the appearance of the parties and the making of the foregoing motion, further recites: “The court, having heard argument of counsel on said motion, and the court finding that there was no actual transfer of property whatever made before May 1, 1894, and that the Northwestern Elevator Company was the owner of the grain on May 1, 1894, it being the grain the assessment of which for the year 1894 the appellant complains of, and the court being fully advised as to the facts,” it is ordered, etc. While, under the statute, it is made the duty of the court to find the facts and conclusions of law separately, the findings in this case, though not strictly regular, may be regarded as a substantial compliance with the statute. Tube Works Co. v. City of Chamberlain, 5 Dak. 54, 37 N. W. 761. The motion, therefore, made by counsel for the respondents was, in effect, merely a...