Regan v. Whittaker

• Decision Date: 19 April 1901
• Citation: 85 N.W. 863,14 S.D. 373
• Parties: REGAN v. WHITTAKER et al.
• Court: South Dakota Supreme Court

85 N.W. 863

14 S.D. 373

REGAN v. WHITTAKER et al.

Supreme Court of South Dakota

April 19, 1901

Appeal from circuit court, Lawrence county; Joseph B. Moore, Judge.

Action by John Regan against Thomas Whittaker and others. From a judgment in favor of the defendants, the plaintiff appeals. Affirmed.

James A. George (Chas. E. Davis, of counsel), for appellant. Wm. R Steele and Moody, Keller & Moody, for respondents.

CORSON J.

The plaintiff, claiming to be the owner of a mining lode location designated as the "Phoenix Lode," located within the boundaries of the city of Deadwood, brought this action to restrain the defendants from interfering with, or trespassing upon, the same, and for damages in the sum of $5,000, sustained in consequence of trespasses upon the same by the said city of Deadwood, and for such other and further relief as might be just in the premises. The defendant Whittaker answered for himself and the other defendants denying, in effect, plaintiff's title, and claiming the premises under and by virtue of a conveyance made to him by the probate judge of Lawrence county under the town-site entry of the city of Deadwood. The case was tried to the court without a jury, and findings and judgment were rendered in favor of the defendants, and the plaintiff appeals.

The plaintiff bases his claim for a reversal mainly upon the ground that the findings of the court were not supported by the evidence and were contrary to the same. Respondent makes the preliminary objection that this court cannot review the evidence for the reason that the motion for a new trial was made upon the minutes of the court, and that the notice of intention to move for a new trial contained no specification of the particulars in which the evidence is alleged to be insufficient, and that it was therefore the duty of the court below to deny the motion, and that this court, without such a specification of the particulars in which the evidence is claimed to be insufficient as provided by subdivision 4, § 5090, Comp. Laws, cannot review the evidence. The material parts of the notice of intention to move for a new trial are as follows: "You will please take notice that the above-named plaintiff intends to move the above-entitled court for an order setting aside the decision and judgment of the court heretofore entered in this action, upon the grounds following: (1) Of newly-discovered evidence material to the plaintiff, which he could not with reasonable diligence have discovered and used at this trial. (2) Insufficiency of evidence to justify the decision of the court. (3) For the judgment and decision of the court is against the law, in this: (a) That the court should have found for the plaintiff under the law and the testimony submitted to the court instead of against the plaintiff and in favor of the defendant. (b) The court should have adopted the findings of fact and conclusions of law prepared on the part of the plaintiff." It will be observed from this notice that it fails to specify the particulars in which the evidence is alleged to be insufficient, and in such case it is provided in the fourth subdivision of the section above referred to, that, "if the notice do not contain the specifications herein indicated, when the motion is made on the minutes of the court, the motion must be denied." There also appears in the abstract what is termed a "notice of motion for a new trial," but that also fails to state the particulars in which the evidence is alleged to be insufficient. This court has repeatedly held that when the motion for a new trial is made upon the minutes of the court or on a bill of exceptions, and the notice of intention or the bill of exceptions fails to specify the particulars in which the evidence is alleged to be insufficient, it is the duty of the trial court to deny the motion, and in such case this court will decline to review the evidence. Henry v. Dean, 6 Dak. 78, 50 N.W. 487; Billingsley v. Hiles, 6 S. D. 445, 61 N.W. 687; Chandler v. Kennedy, 8 S. D. 56, 65 N.W. 439; Tootle v. Petrie, 8 S. D. 19, 65 N.W. 43; Land-Mortg. Co. v. Case, 13 S.D. 28, 82 N.W. 90. The question, therefore, as to the sufficiency of the evidence to sustain the findings, will not be considered by this court.

The only questions, therefore, presented, are whether there were any errors of law occurring at the trial in the exclusion or admission of evidence, and whether or not the findings support the judgment. Only three errors in the exclusion of evidence offered by the appellant have been called to our attention. Regan, when upon the stand as a witness in his own behalf, was asked the following question: "You located in your own name,--changed the name of the mine?" to which he answered: "Mr. Gallagher told me I could locate it in my own name." On motion of counsel for the respondent, the answer was stricken out. We think the court ruled correctly, as his statement of what Gallagher told him was clearly incompetent. One Gallup, called as a witness on the part of the appellant, was asked the following question: "I will ask you if you have ever seen Mr. Regan, the plaintiff in this action, performing any work--assessment work--upon the mining claim known as the 'Phoenix Lode'." This was objected to as immaterial, and the objection sustained. The theory of the respondent was, and that was also the view taken by the trial court, that appellant had never made any valid location of the Phoenix lode, and, that being true, any assessment work that he might have done upon the claim was...