Sobek v. Bidwell

• Decision Date: 12 January 1910
• Citation: 24 S.D. 469,124 N.W. 431
• Parties: AUGUST SOBEL, Plaintiff and respondent, v. F. A. BIDWELL, Defendant and appellant.
• Court: South Dakota Supreme Court

24 S.D. 469, 124 N.W. 431 (1910)

AUGUST SOBEL, Plaintiff and respondent v F. A. BIDWELL,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Buffalo County, SD

Hon. Frank B. Smith, Judge

Affirmed

Preston & Harnett

Attorneys for appellant.

James L. Cook

Attorney for respondent.

Opinion filed Jan. 12, 1910

WHITING, P. J.

This action was brought to quiet the title to a certain tract of farm land in Buffalo county. The plaintiff in his complaint set forth that he was the owner; that he had been in exclusive possession of said land since the year 1901; that the defendant claimed some interest therein by virtue of a pretended mortgage, but that said claim was without merit or foundation, and prayed that the title of defendant be determined, and plaintiff he adjudged to be the owner in fee, and defendant to have no title or interest in the land. The defendant by his answer set forth the giving of a mortgage by the patentee of said land; that by a chain of assignments the mortgage and note secured thereby had become the property of defendant; that he had foreclosed the same by advertisement within the year prior to the commencement of this action; and that he was a holder of the sheriff's certificate on such sale. The answer further alleged that plaintiff claimed his title through a purported tax deed dated January 28, 1898, and the answer set forth various claims of irregularity in the tax proceedings leading up to such deed. Upon the trial plaintiff offered in evidence the said tax deed together with the indorsements thereon; to which offer defendant objected, for the following reasons:

"It does not appear that notice of redemption was given to the record owner prior to the issuance of the said tax deed, that being a condition precedent to issuance thereof, and for the further reason that no proper foundation has been laid for the same, and for the further reason that two instruments are virtually offered in one offer. We object to the indorsement upon this Exhibit 'A' upon the ground it is incompetent and immaterial, and that there is no issue here as to whether or not this treasurer's deed was ever placed on record. Incompetent and immaterial."

Plaintiff then asked to be allowed to reply to the answer, which application was allowed, and plaintiff interposed a reply alleging the regularity of each step in the tax proceedings, the possession of himself and his grantors under such tax deed, and the fact of the recording of such tax deed, and that it had been of record more than three years prior to the commencement of this action, and prior to the foreclosure of said mortgage. The record does not show that, when plaintiff made application to be allowed to reply, any objection was interposed to such application, but it does appear that the defendant excepted to the order granting such application. After the reply was interposed the court oven flied the objection to the introducing the tax deed and the recording thereof, to which ruling defendant excepted.

Under the view which we take of this case the two exceptions this case the two exceptions above noted, and assignments based thereon, are the only matters demanding our consideration, except the calling attention to the fact that our ruling in regard to such assignments renders the other questions raised immaterial.

Defendant's second assignment of error claims that the court erred in permitting plaintiff, over defendant's objection, to reply to the affirmative matter set forth in defendant's answer, and in permitting said plaintiff to set up in his reply the statute of limitation in support of his tax deed. The defendant in his brief has argued to some considerable length to show error on the part of the court in this matter, but certainly under our practice, which allows the short form of complaint in actions of this kind, it must be held, either that such form of complaint is ample to authorize the plaintiff, not only to introduce his deed, but also to introduce proof of the period during which it has been of record if the matter of recording is material, or that, if defendant in his answer affirmatively sets forth the source of plaintiff's title and attacks the same, plaintiff should be allowed to reply thereto, or introduce his proof in rebuttal without a reply, so that in either case the allowance of the reply could work no injury to defendant. Regardless, however, of what we have said above, the assignment must be held as not well taken, for the reason that it does not interposed any objection was interposed when plaintiff asked to be allowed to make reply, and a mere exception, after the ruling, without a previous objection is certainly a nullity. There should be an objection sufficient to call the attention of ...