Raschke v. DeGraff, No. 10146

CourtSupreme Court of South Dakota
Writing for the CourtHANSON
Citation134 N.W.2d 294,81 S.D. 291
PartiesGaylord F. RASCHKE, Plaintiff and Appellant, v. Matilda E. DeGRAFF and William J. Holland, Defendants and Respondents.
Decision Date09 April 1965
Docket NumberNo. 10146

Page 294

134 N.W.2d 294
81 S.D. 291
Gaylord F. RASCHKE, Plaintiff and Appellant,
v.
Matilda E. DeGRAFF and William J. Holland, Defendants and Respondents.
No. 10146.
Supreme Court of South Dakota.
April 9, 1965.

Page 295

[81 S.D. 292] Loucks, Oviatt & Bradshaw, Watertown, for plaintiff and appellant.

Beardsley, Stover & Osheim, Watertown, William J. Holland, Sisseton, for defendants and respondents.

HANSON, Judge.

This is an action for the specific performance of a stipulated agreement releasing a garnishment action. Defendant[81 S.D. 293] answered and moved to dismiss the complaint on the ground of res judicata. The motion was granted and the plaintiff, Gaylord F. Raschke, appeals.

The defendant, Matilda E. DeGraff, owner of certain real property in the City of Watertown entered into a contract to sell the property to plaintiff for the sum of $26,000. Because of defendant's failure to furnish marketable title plaintiff rescinded the contract of sale by action and obtained judgment against defendant in the amount of $7,193.95. The building located on the premises was thereafter partially destroyed by fire. Defendant was insured with the St. Paul Mutual Insurance Company in the amount of $11,000.

On March 23, 1962 plaintiff commenced a garnishment proceeding against Matilda E. DeGraff and her insurer in aid of execution of his money judgment. On April 18, 1962 the parties executed a stipulation and release of the garnishment action wherein it was agreed the garnishment proceedings could be dismissed upon the following conditions: (1) the St. Paul Mutual Insurance Company pay its fire loss in the amount of $11,000 by draft payable to Mrs. DeGraff and her attorney, William J. Holland, (2) upon receipt of such draft William J. Holland pay plaintiff the sum of $7,200, and (3) plaintiff would then file a satisfaction of his judgment against Mrs. DeGraff. The court signed the attached order of dismissal on the same day the stipulation was executed. Also in keeping with the stipulation the insurer issued its draft in the amount of $11,000.

Shortly thereafter Mrs. DeGraff's attorney discovered the property destroyed by the fire had been Mrs. DeGraff's homestead. An application for permission to claim as exempt $10,000 of the insurance proceeds was filed on April 23, 1962 upon which the court issued an order requiring plaintiff to show cause on May 2, 1962 why defendant DeGraff should not be allowed to claim her exemptions. The record does not show whether or not a hearing was held on the date set. However, on May 5th...

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22 practice notes
  • People ex rel. L.S., No. 23560.
    • United States
    • Supreme Court of South Dakota
    • August 16, 2006
    ...fair opportunity to litigate the issues in the prior adjudication. Moe v. Moe, 496 N.W.2d 593, 595 (S.D.1993) (citing Raschke v. DeGraff, 81 S.D. 291, 295, 134 N.W.2d 294, 296 (1965)). A prior final judgment or order that was rendered by a court of competent Page 99 "is conclusive as to all......
  • Dakota, Mn & E. R. v. Acuity, No. 23601.
    • United States
    • Supreme Court of South Dakota
    • August 9, 2006
    ...litigate the issues in the prior adjudication. Matter of Guardianship of Janke, 500 N.W.2d 207, 209 (S.D.1993)(citing Raschke v. DeGraff, 81 S.D. 291, 295, 134 N.W.2d 294, 296 [¶ 18.] As to the first element, whether the issue in DM & E (I) is identical to the present issue, the Eighth Circ......
  • D.G. v. D.M.K., Nos. 19462
    • United States
    • Supreme Court of South Dakota
    • February 6, 1997
    ...and fair opportunity to litigate the issues in the prior adjudication? Moe v. Moe, 496 N.W.2d 593, 595 (S.D.1993); Raschke v. DeGraff, 81 S.D. 291, 295, 134 N.W.2d 294, 296 Wintersteen v. Benning, 513 N.W.2d 920, 921 (S.D.1994). ¶28 "The test for determining if both causes of action are the......
  • Chapman v. Chapman, No. 23702.
    • United States
    • Supreme Court of South Dakota
    • April 12, 2006
    ...questions, or facts directly involved and actually, or by necessary implication, determined therein." Id. (quoting Raschke v. DeGraff, 81 S.D. 291, 295-96, 134 N.W.2d 294, 297 (1965)). In addition, the bar and merger effects also extend to issues "which could have been properly raised and d......
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22 cases
  • People ex rel. L.S., No. 23560.
    • United States
    • Supreme Court of South Dakota
    • August 16, 2006
    ...fair opportunity to litigate the issues in the prior adjudication. Moe v. Moe, 496 N.W.2d 593, 595 (S.D.1993) (citing Raschke v. DeGraff, 81 S.D. 291, 295, 134 N.W.2d 294, 296 (1965)). A prior final judgment or order that was rendered by a court of competent Page 99 "is conclusive as to all......
  • Dakota, Mn & E. R. v. Acuity, No. 23601.
    • United States
    • Supreme Court of South Dakota
    • August 9, 2006
    ...litigate the issues in the prior adjudication. Matter of Guardianship of Janke, 500 N.W.2d 207, 209 (S.D.1993)(citing Raschke v. DeGraff, 81 S.D. 291, 295, 134 N.W.2d 294, 296 [¶ 18.] As to the first element, whether the issue in DM & E (I) is identical to the present issue, the Eighth Circ......
  • D.G. v. D.M.K., Nos. 19462
    • United States
    • Supreme Court of South Dakota
    • February 6, 1997
    ...and fair opportunity to litigate the issues in the prior adjudication? Moe v. Moe, 496 N.W.2d 593, 595 (S.D.1993); Raschke v. DeGraff, 81 S.D. 291, 295, 134 N.W.2d 294, 296 Wintersteen v. Benning, 513 N.W.2d 920, 921 (S.D.1994). ¶28 "The test for determining if both causes of action are the......
  • Chapman v. Chapman, No. 23702.
    • United States
    • Supreme Court of South Dakota
    • April 12, 2006
    ...questions, or facts directly involved and actually, or by necessary implication, determined therein." Id. (quoting Raschke v. DeGraff, 81 S.D. 291, 295-96, 134 N.W.2d 294, 297 (1965)). In addition, the bar and merger effects also extend to issues "which could have been properly raised and d......
  • Request a trial to view additional results

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