Smith v. Commercial Nat'l Bank

• Decision Date: 01 October 1895
• Citation: 64 N.W. 529,7 S.D. 465
• Parties: SMITH et al., Plaintiff and appellant, v. COMMERCIAL NATIONAL BANK et al., Defendant and respondent.
• Court: South Dakota Supreme Court

7 S.D. 465

64 N.W. 529

SMITH et al., Plaintiff and appellant,

v.

COMMERCIAL NATIONAL BANK et al., Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Beadle County, SD Hon. A. W. Campbell, Judge Affirmed T.. H. Null Attorney for appellants. F. Vollrath Attorney for respondents. Opinion filed October 1, 1895

CORSON, P. J.

This was an aotion to set aside a foreclosure sale of real property by advertisement, and cancel the certificate of sale. Judgment was rendered for the defendants, and the plaintiffs appeal from the judgment, taking their appeal from the judgment roll only. The case was tried by the court, and the facts as found will be briefly stated. In July, 1883, the plaintiff Smith executed a promissory note to one Avery, and to secure the same Smith and wife, coplaintiffs, executed to said Avery a mortgage on certain real estate in the city of Huron, Beadle county. In the spring of 1886 Avery transferred said note and mortgage to H. Ray Meyers. The court finds:

“That in the fall of the year 1886, said H. Ray Meyers wanting his money, said Nathan T. Smith arranged with the First National Bank of Huron, in said Beadle county, as follows: Said Smith and one L. K. Church, as principal and surety, executed a promissory note to said bank for the sum of $1,380, and to indemnify said Church in case he should have to pay the note as such surety, said Nathan T. Smith procured said Meyers to execute an assignment of said mortgage (except that the name of the assignee was left blank), and said Meyers left the said assignment, with the said Avery note and mortgage, with the First National Bank of Huron, and upon receipt of said notes and mortgage said bank paid to Meyers the full amount due him, as shown by the face of said $1,200 note with the accrued interest, being the sum of $1,380.”

In the fall of 1887, the Huron bank requiring payment of the Church note, Smith proceeded to St. Paul and induced the defendant bank to advance sufficient money to take up the Church note, and he agreed with the said St. Paul bank to give his own note, and that the Avery note and mortgage should be transferred to it. The defendant bank thereupon remitted to the Huron bank the money necessary to take up the Church note, and the Huron bank forwarded to it the Avery note and mortgage. Smith caused the blank for the name of the assignee in the assignment to be filled up with the name of an officer of the defendant bank. Smith failing to pay his note to the defendant bank, that bank in 1889 proceeded to foreclose the Avery mortgage by a notice in a newspaper published at Hitchcock, about 12 miles from the city of Huron, in Beadle county. In 1890 Smith conveyed said mortgaged property to his wife, the coplaintiff, and since 1888 the plaintiffs have occupied said premises as a homestead. The court further finds that the said Avery note and mortgage have never been paid, except by the foreclosure proceedings, and that the wife had no knowledge of the transaction between Smith and the defendant bank. Upon the facts above stated, and other findings not necessary to be noticed, the court concluded, as matter of law, that the defendant was entitled to judgment.

The learned counsel for the respondent raises a preliminary question that, as there is no bill of exceptions or statement, there are no errors that can be reviewed on this appeal, and he contends that neither the judgment nor findings of fact can be reviewed, unless exceptions were taken to them on the trial and brought here by a bill of exceptions. In support of his contention he cites Lamet v. Miller (Cal.) 11 Pac. 744, Purdum v. Taylor (Idaho) 9 Pac. 607, and other California and Idaho cases. In both of the cases cited motions were made for judgment upon the pleadings, and those courts held that in such case a bill of exceptions is necessary, in which it should be made to appear that the party appealing excepted ‘to the order granting the motion, or that he was absent when the order was made. Both courts evidently treated the order made upon the motion as coming within the latter clause of section 5080, Comp. Laws, and the correctness of the ruling of the court upon the motion as the principal matter to be reviewed. Where a motion is made for judgment upon the pleadings, a formal motion is necessary. But a judgment is rendered upon a verdict of a jury or findings of fact by the court, as matter of course, and no formal motion is required. The findings as well as the judgment constitute a part of the judgment roll. Colonial & U. S. Mort. Co. v. Bradley,(1893). A judgment is deemed to have been excepted to, under the first clause of section 5080, Comp. Laws. On an appeal from a judgment roll...