Sully v. Egan

• Decision Date: 28 January 1927
• Docket Number: No. 5967.,5967.
• Parties: SULLY v. EGAN, Sheriff.
• Court: South Dakota Supreme Court

51 S.D. 46

211 N.W. 803

SULLY

v.EGAN, Sheriff.

No. 5967.^*

Supreme Court of South Dakota.

Jan. 28, 1927.

Appeal from Circuit Court, Lyman County; N. D. Burch, Judge.

Action by Ellen Sully against E. M. Egan, as Sheriff of Lyman County and individually. From the judgment and an order overruling plaintiff's motion for new trial, plaintiff appeals. Judgment and order affirmed.P. A. Hosford, of Winner, for appellant.

Stephens, McNamee, O'Keeffe & Stephens, of Pierre, for respondent.

MISER, C.

Appellant, in her notice of intention to move for a new trial, gives as reasons therefor the causes contained in subdivisions 1, 2, 4, 6, and 7, § 2555, Rev. Code 1919, but does not clearly designate whether the same will be upon affidavits, the minutes of the court, or a settled record, as required by section 2557. Inasmuch as, under section 2556, applications for new trials for the causes specified in the first, second, and fourth subdivisions must be upon affidavits, and inasmuch as there are no affidavits presented in this case, it is obvious that appellant has not only abandoned the causes contained in those three subdivisions, but also that she does not intend to base her motion for new trial on affidavits. This leaves for consideration the causes contained in the sixth and seventh subdivisions, if not thereafter abandoned. Under section 2556, one applying for a new trial for either of these causes, namely, insufficiency of the evidence to justify the verdict and that it is against law, or error in law occurring at the trial and excepted to by the party making the application, may base his application either upon a settled record or upon the minutes of the court. Neither in the notice of intention nor in the notice of motion does appellant use the words “settled record,” but in each of said notices uses the phrase “minutes of the court.” Yet it might be contended that appellant's intention to rely upon the settled record might be inferred from the following language in her notice of intention:

“The said motion will be based upon all of the files and records in this action, said specifications of errors, specifications of particulars, and transcript of the trial court's proceedings, all of which will hereafter be served upon you and upon the minutes of the court.”

[1] But not only does section 2556 require that appellant exercise her option of basing her motion either upon a settled record or upon the minutes of the court, but this court has held, in Thompson v. Chicago, M. & St. P. Ry. Co., 26 S. D. 296, 128 N. W. 809, that the party giving notice of intention must elect whether he will proceed upon settled record or the minutes of the court. That appellant did so elect in this case to proceed upon the minutes of the court is shown by the fact that, though she thereafter did have the record settled, the record was not settled until 25 days after the motion for new trial had been denied, and in the order overruling the motion for a new trial, the settled record is not referred to, and the minutes of the court are referred to in substantially the language above quoted from the notice of intention. It was therefore appellant's intent to bring herself within subdivision 3, § 2557. This, so far as material to the present inquiry, is as follows:

“When the motion is to be made upon the minutes of the court, and the ground of the motion is the insufficiency of the evidence to justify the verdict or other decision, the notice of intention must specify the particulars in which the evidence is alleged to be insufficient;and, if the ground of the motion be errors in law occurring at the trial and excepted to by the moving party, the notice of intention must specify the particular errors upon which the party will rely. If in such case the notice does not contain the specifications herein indicated, the motion must be denied.”

[2] Appellant, in her notice of intention, does not comply with the statute last above quoted, unless it be sufficient to use the following language found therein:

“The specifications of particulars, wherein the evidence is insufficient to justify the verdict, will be hereafter served, upon you, together with the...