Schlachter v. St. Bernard’s Church

• Decision Date: 29 November 1905
• Citation: 105 N.W. 279,20 S.D. 186
• Court: South Dakota Supreme Court
• Parties: N. J. SCHLACHTER, Plaintiff and respondent, v. ST. BERNARD’S ROMAN CATHOLIC CHURCH OF HOVEN, POTTER COUNTY, S. D. et al, Defendant and appellant.

20 S.D. 186

105 N.W. 279

N. J. SCHLACHTER, Plaintiff and respondent,

v.

ST. BERNARD’S ROMAN CATHOLIC CHURCH OF HOVEN, POTTER COUNTY, S. D. et al, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Potter County, SD Hon. Loring E. Gaffy, Judge Reversed Murtha & O'Keefe Attorneys for appellants. S. M. Howard Attorney for respondent. Opinion filed Nov. 29, 1905

CORSON, J.

This is an action by the plaintiff, a lumber merchant in Gettysburg, to foreclose a lien for the balance due him for lumber furnished for the erection of a church, for the corporation of which the defendants are trustees, and the legal title to which property is in Bishop O’Gorman, as trustee. Judgment was rendered in favor of the plaintiff, and the defendants have appealed.

A motion was made by the respondent to dismiss the appeal on the ground, mainly, that no bill of exceptions was served or settled within the time prescribed by the statute. The failure, however, to serve and settle a bill of exceptions in a case is no ground for dismissing the appeal, as the appeal may be taken from the judgment alone, and the only motion that could be properly made in such a case would be to strike the bill of exceptions from the record. Gram v. Northern Pac. Ry. Co., 46 N.W. 972. The motion to dismiss the appeal is therefore denied.

This brings us to the merits of the case. The trustees of the church corporation served and filed an answer, and the action was noticed for trial by both parties. Oil the case being reached for trial it appeared that Bishop O’Gorman had not filed an answer, although more than 60 days had elapsed since the service of the summons upon him, and the court, upon motion, granted him leave to serve and file an answer forthwith. Certain proceedings were had in the case, relating to a continuance of the action over the term, and thereupon the court, on March 31, 1904, made and entered the following order:

“This cause coming on to be heard at the regular March term of said court, begun and held at Gettysburg, in said county, upon the motion of the defendants for a continuance of this cause, the plaintiff appearing by S. M. Howard, his attorney, and the defendants appearing by Murtha & O’Keefe, their attorneys, and the court having heard the argument of counsel thereupon for both plaintiff and defendants, and being fully advised in the premises, it is hereby ordered that said motion for continuance be, and hereby is, allowed upon the payment of $15 terms to the plaintiff’s attorney, and that in default of such payment the plaintiff shall have judgment as prayed for in the complaint.”

The terms of the order not having been complied with by the payment of the $15 specified therein, a motion was made to the court for judgment, and upon the hearing of said motion the same was granted, and judgment was entered in favor of the plaintiff, as prayed for in the complaint, by the court at chambers, at Miller, Hand county; said county being one of the counties of the Sixth judicial circuit. It affirmatively appears from the record in this case that no evidence was offered on the part of the plaintiff in support of his claim, but that the judgment was entered upon the motion of the plaintiff’s attorney for the reason that the terms imposed by the court’s order of March 31, 1904, had not been complied with. Numerous errors are assigned on the part of the defendants, but it is necessary for us to notice only the seventh and fourteenth assignments of error, which read as follows:

“(7) The court erred in ordering a continuance on the payment of...