Pierce v. Manning

• Citation: 2 S.D. 517,51 N.W. 332
• Parties: MOSES PIERCE and VAVASA P. PIERCE, Plaintiffs and respondents, v. MANNING, Sheriff of Lawrence County, Defendant and appellant.
• Decision Date: 24 February 1892
• Court: Supreme Court of South Dakota

2 S.D. 517

51 N.W. 332

MOSES PIERCE and VAVASA P. PIERCE, Plaintiffs and respondents, v. MANNING,

Sheriff of Lawrence County,

Defendant and appellant.

South Dakota Supreme Court

Appeal from District Court, Lawrence County, SD

Hon. Chas. M. Thomas, Judge

Affirmed

Martin & Mason, Deadwood, SD

Attorneys for appellants.

Van Cise & Wilson, Deadwood, SD

Attorneys for respondents.

Opinion filed February 24, 1892

KELLAM, P. J.

Since the argument and submission of this case in this court, one of the plaintiffs and respondents, Moses Pierce, has died; and his executors have been substituted, and, with the surviving partner, Vavasa P. Pierce, are now the respondents herein. The plaintiffs, as partners, brought this action to recover a stock of boots and shoes, claiming to have purchased them from their acknowledged owner, James Algeo. The defendant and appellant, sheriff of Lawrence county, admitted the taking, and justified under warrants of attachment issued to him in two cases against said Algeo, claiming that the alleged sale by Algeo to respondents was made with intent to defraud his creditors, and was therefore void. The case was tried by the court, which on May 17th made and filed findings of fact and conclusions of law. During the same month, and before entry of judgment, appellant moved for a new trial on the ground that the evidence was insufficient to justify certain designated findings of fact and conclusions of law. This motion was overruled, and appellant excepted. Afterwards, September 14th, judgment was entered upon such findings and conclusions.

The appeal is from the judgment alone, and the overruling of appellant’s motion for new trial is not assigned as error. With the record in this condition, respondents insist that this court cannot examine the errors assigned, to wit, the insufficiency of the evidence to sustain the findings of the court. The motion for new trial was denied, but nowhere in this record does it appear that appellant complains of such ruling. He neither appeals from it, nor assigns it as error to be reviewed in his appeal from the judgment. Our statute does not specifically provide for an assignment of errors on appeal to the supreme court in civil cases, but the rules of court do, and there would probably be little disagreement as to its necessity or function. Brewing Co. v. Mielenz. 5 Dak. 136, 37 N.W. 728. It is the complaint which the appellant makes against the proceedings of the court below. The rule is very general, if not universal, that in an appellate court only such matters will be examined for error as are complained of. Wood v. Whitton, 66 Iowa, 295, 19 N.W. 907, and 23 N.W. 675; Steele v. Railway Co., (Ill. Sup.) 17 N.E. 483; Miller v. Wade, 87 Cal. 410, 25 Pac. 487; Wallace v. Robeson, (NC) 6 S.E. 650; Oil Co. v. Perry, (Ala.) 4 South. 635; Clark v. Schnur, 40 Kan. 72, 19 Pac. 327; Reagon v. Copeland, (Tex. Sup.) 14 S.W. 1031; Woodal v. Grater, 51 Ind. 539. But it may be said that by Section 5237; Comp. Laws. “upon an appeal from the judgment, … the supreme court may review any intermediate order or determination of the court below which involves the merits and necessarily of fects the judgment appearing upon the record transmitted,” etc.; but “may review” is not to be held to mean “must review,” without regard to compliance with other requirements of law and practice. The appellate court will ordinarily review only such questions as it is asked to review, and the method of asking is by assigning error in respect to the matters sought to have reviewed. The insufficiency of the evidence being specifically named by our statute as one of the grounds for a new trial, and the appellant having made such motion in the court below upon that particular ground, and neither appealing from the ruling of the court denying it nor assigning the same as error in this appeal from the judgment, it might be argued that the question of insufficiency was res judicata. Clark v. Schnur, supra, was much like the case now under consideration, and such was the practical effect of the holding of the court in that case; and the same view was subsequently taken of a similar case, (Struthers v. Fuller, 45 Kan. 735, 26 Pac. 471.) In both of these cases the court holds that a motion for a new trial having been made and denied, and such ruling not being assigned as error, the questions involved in the motion cannot be considered on appeal from the judgment. The court, quoting from a former opinion in Carson v. Funk, 27 Kan. 524, says: “Where, in an assignment of errors, the only errors complained of relate to matters occurring on the trial for which a new trial was prayed, but the action of the court in overruling the motion is not assigned for error, no question is properly raised in this court.” In Lingerman v. Nave, 31 Ind. 222, the supreme court of Indiana declared and enforced the same ruling, saying: “The only errors complained of relate to matters occurring on the trial, and for which a new trial was prayed; but the action of the court in overruling the motion for a new trial is not assigned for error. No question, therefore, is properly raised by the assignment of errors.”

The making of a motion for a new trial, in any case when it is required, is not a mere perfunctory ceremony to precede an appeal. The fact of making the motion is of importance only in connection with the ruling of the court upon such motion; and the ruling is important because it is the decision of the court upon the questions presented in the motion, and to that extent fixes the rights of the parties. It is an adjudication of all the matters necessarily involved in a determination of the motion. In this case the denial of the motion for a new trial was a judicial determination that the evidence was sufficient to support the findings. With the correctness of such decision unchallenged by appeal or by an allegation of error, can appellant be heard to argue in this court that the judgment ought not to stand, because the evidence did not sustain the findings,—the very question which he submitted to the trial court in his motion for new trial, and of whose decision he does not complain? The cases cited from Indiana and Kansas are against it. The ruling appears technical, but is a logical growth from the facts. Appellant appeals from the judgment, but plainly the judgment is right if the findings are correct. The correctness of the findings has been adjudicated by the court below. To allow a relitigitation of the same matters in this court, in a proceeding in which the determination of the court below is not directly attacked, would be akin to permitting such adjudication of the trial court upon the motion for new trial to be impeached collaterally.

If, then, it was incumbent upon appellant to make a direct attack upon the decision of the court below on the motion for new trial,—it not having been done, we think the most favorable view appellant could ask us to take of this record would be to regard the statement in the abstract as to the motion for a new trial and its denial by the court as surplusage; so that we would read the abstract as though no motion for new trial had been made in the trial court; and then the question is presented whether, in an action tried by the court without a jury, the question of the sufficiency of the evidence to support the findings can be brought directly to this court on an appeal from the judgment without a motion for a new trial in the court below. It is a very common ruling that where it is claimed that the verdict of a jury is against the evidence a motion for a new trial founded upon that claim must be presented to and decided by the trial court before the question will be considered by a reviewing court. Kirch v. Davies, 55...