Seubert v. Fawick Traction Co.
Decision Date | 18 October 1915 |
Docket Number | 3792 |
Citation | 154 N.W. 446,36 S.D. 213 |
Parties | JOHN SEUBERT, Plaintiff and respondent, v. FAWICK TRACTOR COMPANY, Defendant and appellant. |
Court | South Dakota Supreme Court |
Appeal from Municipal Court, Sioux Falls, SD
#3792--Affirmed
Lyons & Lyons
Attorneys for Appellant.
Joe Kirby
Attorneys for Respondent.
Opinion filed October 18, 1915
This case is here upon an appeal from an order denying a motion to vacate and set aside a default judgment. Certain affidavits, upon which the motion was based and which appellant contends are sufficient to entitle it to the relief prayed for, are set out in the statement of the case. Respondent filed an additional statement of the case in which it is claimed that appellant's brief contains no assignment of error, and it is contended by him that this court cannot consider the sufficiency of appellant's showing on the motion, for the reason that the making of the order appealed from is not assigned as error. An examination of appellant's statement of the case and brief verifies the claim that no assignment of error is made by appellant; and, this being the case, there is nothing before this court for consideration.
The rule is well established, and has been consistently adhered to by this court, that only such matters as are presented by proper assignments will be considered upon appeal. In Williams Bros. Lumber Co. v. Kelly, 23 S.D. 582, 122 N.W. 646, this court, quoting from 2 Enc. Pl. & Pr. 922, said:
"
And, again, in State v. Johns, 25 S.D. 451, 127 N.W. 470, this court said: "The rule seems to be well settled that, unless there is an assignment of errors contained in the abstract, this court has nothing before it for review" citing Bill...
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