Raschke v. DeGraff, 10146
| Decision Date | 09 April 1965 |
| Docket Number | No. 10146,10146 |
| Citation | 134 N.W.2d 294,81 S.D. 291 |
| Parties | Gaylord F. RASCHKE, Plaintiff and Appellant, v. Matilda E. DeGRAFF and William J. Holland, Defendants and Respondents. |
| Court | South Dakota Supreme Court |
Loucks, Oviatt & Bradshaw, Watertown, for plaintiff and appellant.
Beardsley, Stover & Osheim, Watertown, William J. Holland, Sisseton, for defendants and respondents.
This is an action for the specific performance of a stipulated agreement releasing a garnishment action. Defendant 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 Because of defendant's failure to furnish marketable title plaintiff rescinded the contract of sale by action and obtained judgment against defendant in the amount of $7,193.95.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 defendant DeGraff served a claim of exemptions and made a further motion to dismiss the garnishment action and to be relieved from the stipulation of dismissal. This motion was noticed for hearing and heard on the 18th day of May, 1962. Plaintiff opposed all of such applications and motions on the grounds, among others, that the court lacked jurisdiction and defendant DeGraff was legally and morally bound by the stipulation and agreement whereby the garnishment action was dismissed.
A memorandum opinion was issued by the trial court on October 10, 1962 in which the court indicated the garnishment proceedings were void on jurisdictional grounds and an order would issue dismissing the proceedings. Upon receipt of this memorandum opinion plaintiff filed a motion to dismiss defendants' application for permission to claim exemptions, claim of exemptions, and motion of dismissal on the grounds the court lacked jurisdiction to hear and consider the same as the garnishment proceedings had been dismissed by order of the court on April 18, 1962 upon the stipulated agreement of the parties; and the defendant and her counsel were each legally and morally bound by the stipulation and the court was requested to enforce the same. This motion was noticed for hearing on November 2, 1962. Following this hearing the court entered an order on November 2, 1962 denying plaintiff's motion and a second order complying with its prior memorandum...
To continue reading
Request your trial
-
People ex rel. L.S., 23560.
...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 jurisdiction, "is conclusive as to al......
-
Healy v. Fox
...2020) (applying the four elements to issue preclusion). South Dakota's use of these elements originates14 from Raschke v. DeGraff, 81 S.D. 291, 134 N.W.2d 294, 296–97 (1965), which applied a portion of the analysis in an issue preclusion case. The court in Raschke drew from Keith v. Willers......
-
Dakota, Mn & E. R. v. Acuity
...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 (1965)). [¶ 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.
...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 (1965). Wintersteen v. Benning, 513 N.W.2d 920, 921 ¶28 "The test for determining if both causes of action are the same is......