Oahe Enterprises, Inc. v. Golden

• Decision Date: 31 May 1974
• Docket Number: No. 11144--,11144--
• Parties: OAHE ENTERPRISES, INCORPORATED, Plaintiff-Respondent, v. Warren GOLDEN, Defendant-Appellant. dis--AR.
• Court: South Dakota Supreme Court

Page 485

218 N.W.2d 485

88 S.D. 296

OAHE ENTERPRISES, INCORPORATED, Plaintiff-Respondent, v. Warren GOLDEN, Defendant-Appellant.

No. 11144--dis--AR.

Supreme Court of South Dakota.

May 31, 1974.

David L. Bergren, Fort Pierre, for plaintiff-respondent.

Ronald G. Schmidt, Pierre, for defendant-appellant.

RENTTO, Judge. ¹

A contract between these parties dated January 6, 1967 obligated plaintiff corporation to transfer some of its capital stock to defendant as payment for personal property he had assigned to it. Claiming that it was not binding and did not reflect their agreement, plaintiff brought this action to rescind it, or in the alternative, have it reformed to reflect the agreement they made. Defendant denied these allegations and by cross claim asked that plaintiff be required to make delivery of the stock.

On the trial of these issues to the court without a jury defendant prevailed. On December 23, 1970 judgment was entered dismissing plaintiff's causes of action and granting defendant judgment against plaintiff for $16,922.32, and ordering that it immediately issue to defendant its stock for that amount. However, there was no finding made or requested determining how many shares of stock defendant was entitled to receive. Obviously that would depend on the value ascribed to each share. No finding was made or proposed on this issue either.

On January 29, 1971 defendant filed a motion to amend the findings of fact, conclusions of law and judgment to fix the number of shares defendant was entitled to receive at 338.446. He arrived at this figure by claiming the the stock was worth $50.00 a share on January 6, 1967, the date the contract was entered into. The trial record seems to support this. Plaintiff took the position that the value of the stock should be determined as of December 23, 1970, the date of the judgment. Accordingly it tendered him 150 shares. This motion was not heard by the judge who had presided at the trial, but by his successor in office. On March 10, 1971 he entered an order denying the motion.

While it is not in the settled record, apparently a second motion similar to the one of January 29, 1971 was filed. Additionally it asked in the alternative for a new trial. The order denying it was entered on December 17, 1971 and filed June 6, 1972. There is no proof that notice of the entry of this order was given to the defendant, SDCL 15--26--2. Nevertheless he gave notice of appeal from that order. His present counsel's first appearance herein was at oral argument.

The threshold contention urged by respondent corporation is that this court lacks jurisdiction to hear appellant's purported appeal. We agree but not for the reason urged. It regards the appeal as not being timely. In our view the order involved is not appealable.

Subsections (2) through (5) of SDCL 15--26--1 describe the types of orders, other than intermediate orders made before trial, from which appeals from the circuit court can be taken to this court. They are as follows:

'(2) An order affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken;

'(3) An order granting a new trial;

'(4) Any final order affecting a substantial right, made in special proceedings, or upon a summary application in an action after judgment;

'(5) An order which grants, refuses, continues, dissolves, or modifies any of the remedies of arrest and bail, claim and delivery, injunction, attachment, garnishment, receivership, or deposit in court;' An appeal may not be taken from an order unless it is authorized by one of these provisions. Wilge v. Cropp, 74 S.D. 511, 54 N.W.2d 568. An attempted appeal from an order from which no appeal lies is a nullity, Deere & Webber Co. v. Hinckley, 20 S.D. 359, 106 N.W. 138, and confers no jurisdiction on this court, except to dismiss it.

While the first of these motions made no reference to a new trial and the second mentioned it only as an alternative, we consider them as having been filed pursuant to SDCL 15--6--59(a)- (g), our rules governing motions for new trials. From the exhibits attached to the first motion, and in the state of the record we must assume that similar exhibits were attached to the second one, it is clear that defendant was not seeking a retrial of the cause. He was asking only that the findings be amended to determine that a share of the stock in question was of the value of $50.00 on January 6, 1967, with the additional resulting conclusion and recital in the judgment, that he was entitled to receive 338.446 of them. It was his view that he was entitled to these amendments on the existing record. Accordingly no additional testimony was offered or taken.

We are of the view that this kind of a truncated proceeding for a new trial is within the contemplation of our rules. In SDCL 15--6--59(a), it is provided that:

'On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.'

Manifestly this language does not limit the motion to those situations where additional testimony is taken. See also SDCL 15--6--59(e). It may properly be urged on the record made at the trial as was done here. Accordingly we are inclined to treat the motion in controversy as one for a new trial.

At this juncture we think it proper to point out that Rule 52(b) of the Federal Rules of Civil Procedure expressly provides for a motion to amend findings or make additional findings and permits the court to amend the judgment to correspond. It also provides that such motion may be made with a motion for a new trial pursuant to Rule 59. ² Our Rules of Civil Procedure which govern the procedure in our circuit courts, SDCL 15--6--1, do not contain comparable provisions. They make no provision for a motion to amend findings and conclusions except as such authority is found in SDCL 15--6--59(a).

Several basic changes in our rules of appellate procedure were made with the enactment of the South Dakota Code of 1939. One of these was to remove an order denying a new trial from the list of appealable orders. Prior to this change an appeal was authorized from either an order granting or denying a new trial. 3168(3) R.C.1919. However, SDC 33.0701 permitted appeals only from orders granting a new trial. That is...