Ormsby v. Conrad

• Decision Date: 31 January 1894
• Citation: 57 N.W. 778,4 S.D. 599
• Parties: ORMSBY v. CONRAD et al.
• Court: South Dakota Supreme Court

4 S.D. 599

57 N.W. 778

ORMSBY

v.CONRAD et al.

Supreme Court of South Dakota.

Jan. 31, 1894.

Syllabus by the Court.

1. On an appeal to this court the record must affirmatively show error; otherwise, this court will not disturb the decision of the court below. Following the decision of Kent v. Insurance Co., (S. D.) 50 N. W. 85.

2. Where an order may be made by the circuit court as a matter of strict legal right of the applicant, or in the exercise of the court's judicial discretion, and the character and form of the order indicate that it was made in the exercise of the court's judicial discretion, and there is nothing in the record showing that it was not so made, this court will presume that such order was made by the court in the exercise of such judicial discretion.

3. Where an order is made by the circuit court, to which the applicant, upon the facts shown by his affidavits, might be entitled, as a matter of strict right, without the payment of costs, but which order the court, upon the facts disclosed is authorized to make in the exercise of its judicial discretion, and there are no findings of facts or recital of facts in the order, and the order is made on condition that certain costs and attorneys' fees shall be paid, this court will presume that the order was made in the exercise of the court's judicial discretion, there being nothing in the record showing that it was not so made.

Appeal from circuit court, Pennington county; William Gardner, Judge.

Action by E. S. Ormsby against Simon P. Conrad and another to foreclose a mortgage. There was judgment by default for plaintiff, who afterwards moved to vacate the same on the ground that the action was unauthorized by him. From the conditional order made on the motion, plaintiff appeals. Affirmed.E. B. Soper, Wood & Buell and Allen & Morling, for appellant.

CORSON, P. J.

On November 5, 1891, E. S. Ormsby, the plaintiff named in the above-entitled action, made the following motion in the circuit court of Pennington county: “[Title of Cause.] Comes now the plaintiff above named, E. S. Ormsby, and moves the court to set aside and annul the judgment rendered in this cause in favor of this plaintiff and against the above-named defendants on the 27th day of February, 1891, for the sum of nine thousand three hundred and fifty-eight dollars and fifty-two cents, ($9,358.52,) together with attorney's fees, taxed at three hundred dollars, ($300,) and costs, and as grounds for such relief shows to the court: (1) That this suit was commenced and prosecuted to judgment without the authority, knowledge, or consent of this plaintiff, or subsequent ratifications. (2) That the E. S. Ormsby named as plaintiff in said suit and in the judgment rendered herein is not now, at the time of the commencement of this suit, and at no times since has been, the owner of the instruments on which said action was founded, and has had no interest therein or possession thereof or control thereover, and no authority from the owners thereof to bring such action, or cause the same to be brought. (3) That *** the originals, neither of the notes set out in the complaint and of neither of the mortgages securing the same, were in the hands of said William T. Coad, who pretended to act as attorney for plaintiff, nor in the hands of S. A. Flower, who pretended to employ him, nor in the possession of either of them, at any time during the pendency of said action, but that the seven thousand dollar ($7,000) loan, and the notes and mortgages securing the same, set out in the first division of the petition, are now, and have at all times since May 23, 1890, been, in possession of the American and General Mortgage and Investment Corporation, Limited, of London, England, which has at all times since said date been the owner thereof, and that said mortgage notes, and mortgage securing same, for one thousand six hundred and seventy-four dollars and seventeen cents, ($1,674.17,) are now, and at all times since said date have been, in the possession of the American Investment Company of Emmettsburgh, of Iowa, and that the acts of the said Coad in bringing and prosecuting said suit are wholly unauthorized and void.” Subsequently, on ...