Schurman v. Schurman

• Citation: 245 N.W. 39,60 S.D. 489
• Decision Date: 01 November 1932
• Docket Number: 7267.
• Parties: SCHURMAN v. SCHURMAN et al. (DOYLE et al., Garnishees).
• Court: Supreme Court of South Dakota

245 N.W. 39

60 S.D. 489

SCHURMAN v. SCHURMAN et al. (DOYLE et al., Garnishees).

No. 7267.

Supreme Court of South Dakota

November 1, 1932

Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge.

Garnishment proceedings by Fritz Schurman, wherein J. C. Schurman and another were defendants, and William T. Doyle and others were garnished. From an order dismissing the garnishment proceedings, plaintiff appeals.

Affirmed.

Canfield & Michael, of Luverne, Minn., and B. O. Stordahl, of Sioux Falls, for appellant.

Krause & Krause and Ervin P. VanBuren, all of Dell Rapids, for respondents.

RUDOLPH J.

Garnishment proceedings were commenced in the circuit court. A motion to dismiss the garnishment proceedings, based upon affidavits was made by the garnishee defendants. After a hearing, the trial court entered its order dismissing the garnishment proceedings. The order contained no recital upon what the order was based; neither was there filed therewith the certificate of the judge who entered the order designating upon what the order was based. The attempted appeal is from this order.

Rule 6 adopted for trial courts of record, provides as follows "All orders must forthwith be filed. When any order is filed there shall be filed therewith all the affidavits and papers presented or used by either party on the motion upon which the order is granted, not then on file. Every order shall recite, or there shall be filed therewith a certificate of the judge designating, upon what such order is based. The failure or neglect to file such certificate, affidavits and papers, by the person in whose favor an order is granted, shall be cause for setting aside the order for irregularity."

The order was not set aside under the provisions of the above-quoted rule, but the appeal was attempted to be taken from the order as entered.

This court, in the case of Anderson v. Bruflat, 39 S.D. 555, 165 N.W. 538, said: "In case of an order granted upon affidavits or other written evidence, the record as to such order may be settled under rule 5 [now rule 6] of the Trial Courts."

In the case of Farmers' & Merchants' State Bank of Hecla v. Michael, 36 S.D. 172, 153 N.W. 1008, this court said: "If the order appealed from complies with the provisions of rule 5 [now rule 6] of the circuit court, or if the trial court, failing to comply with such rules, thereafter and within proper time made and attached to such order a certificate covering any omissions in such order, there exists a 'settled record' sufficient for the purposes of this appeal."

In the case of Rodman v. Rodman, 52 S.D. 339, 217 N.W. 507, 508, this court said: "If an order fails to recite upon what it is based, a certificate of the trial judge designating upon what it is based is necessary to authenticate the record for a review of the order."

There has been no attempt here to comply with rule 6. We have no certificate of the trial court designating upon what the order appealed from is based. Under the provisions of rule 6 and the rule announced in the cases above quoted from, it is necessary that the order itself recite over the signature of the judge upon what it is based, or that there be entered a certificate of the judge designating upon what such is based, before there can be a review of the order in this court.

That this court may be able to review any action of the lower court, wherein the record made in the lower court is involved, it is necessary that the record be authenticated and for this reason we have the requirement for a settled record under the provisions of article 2, chapter 3, part 6, tit. 2, Rev. Code 1919 (sections 2546-2553) and we also have rule 6 that we may have an authenticated record of...