Ormsby v. Conrad

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

4 S.D. 599, 57 N.W. 778 (1894)

E. S. ORMSBY,

Plaintiff and appellant,

v.CONRAD et al.,

Defendants and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Pennington County, S.D.

Hon. William Gardner, Judge

Affirmed

E. B. Soper, Wood & Buell, Rapid City, S.D.

Allen & Morling

Attorneys for appellant.

Opinion filed Jan. 31, 1894

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 September 14, 1892, the court made an order setting aside and vacating the judgment and dismissing the action, but made the same subject to the following conditions:

“All of which is done, however, upon the express terms and conditions that said plaintiff, E. S. Ormsby, pay or cause to be paid to said William T. Coad, attorney, the costs of the foreclosure proceedings herein, taxed at the sum of three hundred dollars, ($300,) as attorney’s fees for services rendered by said Coad in said foreclosure proceedings, and the further sum of thirty-seven and thirty hundredths ($37.30) dollars, legitimate costs incurred therein, amounting in all to the sum of three hundred and thirty-seven and thirty hundredths ($337.30) dollars.”

To this part of the order the plaintiff duly excepted, and from it he has appealed to this court. He assigns as error that the court cried in making said order upon the conditions specified in the part thereof from which the appeal is taken.

Upon the hearing of the motion a number of affidavits were read on the part...