Sweeney v. Hewett

• Court: South Dakota Supreme Court
• Writing for the Court: GATES
• Citation: Sweeney v. Hewett, 148 N.W. 503, 34 S.D. 302 (S.D. 1914)
• Decision Date: 25 July 1914
• Docket Number: No. 3526.,3526.
• Parties: SWEENEY v. HEWETT, Sheriff, et al.

34 S.D. 302

148 N.W. 503

SWEENEY

v.HEWETT, Sheriff, et al.^†

No. 3526.

Supreme Court of South Dakota.

July 25, 1914.

Appeal from Circuit Court, Pennington County; Levi McGee, Judge.

Action by Thomas Sweeney against Tom Hewett, as Sheriff of Pennington County, and another. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Judgment and order reversed.Frank D. Bangs, of Rapid City, for appellants.

Buell, Gardner & Denu, of Rapid City, for respondent.

GATES, J.

The defendant corporation had judgment against plaintiff in the United States Circuit Court in December, 1891. In July, 1893, this plaintiff assigned to E. W. Martin, as trustee for said judgment creditor, a certain mechanic's lien against the property of the Dakota, Wyoming & Missouri River Railroad Company as collateral security for said judgment. The notice of such mechanic's lien was filed in the clerk's office in February, 1893; the amount of such lien being $1,491.72. Other property was also assigned as collateral security. Suit was brought upon said judgment in the circuit court within and for Pennington county, and judgment rendered thereon in said court, January, 1902. It is agreed that there was due on said judgment $2,598.04 on November 15, 1902. On February 27, 1903, the said E. W. Martin, trustee, assigned said mechanic's lien to Chas. D. Crouch, trustee, for the sum of $300. This plaintiff also assigned said lien to said Crouch, as trustee, on July 1, 1903. On June 12, 1911, the defendant corporation caused an execution to be issued on said judgment, and a levy was made upon certain property of this plaintiff. Thereupon this action was brought by plaintiff to cancel said judgment, and for an injunction against the enforcement of said execution. A special issue was submitted to the jury as to what amount was due the defendant corporation on said judgment. A verdict was returned finding the sum of $30.30 due thereon. The trial court adopted such verdict and made findings of fact and conclusions of law to the effect that, by assigning said lien to the said Chas. D. Crouch, trustee, the defendant corporation had converted and appropriated said mechanic's lien, and therefore that this plaintiff was entitled to credit upon the said judgment for the full amount due upon the lien, instead of the sum of $300, received by the defendant corporation as a consideration for such assignment. From this judgment, and the order denying a new trial, the defendants appeal.

[1]Respondent specifically denies that the statement of facts printed by appellant contains all of the material evidence received at the trial, and therefore objects to the consideration by this court of the sufficiency of the evidence to sustain the findings of fact. Rule 7 (140 N. W. ix) of this court provides:

“If the respondent shall deem the statement of the contents of the settled record as contained in appellant's brief to be imperfect or unfair, he may insert in his brief such further or additional statement as he shall deem necessary to a full understanding of the questions presented to this court for decision.”

When appellant's brief apparently contains a statement of all of the material evidence, and is accompanied by the required statement that it does contain all of such material evidence, then the remedy of respondent is not a denial of the correctness of such statement; but his remedy is by a compliance with the above-quoted portion of rule 7. If however, appellant's brief shows upon its face that the statement that it contains all of such material evidence is untrue, then the respondent may take advantage thereof without complying with the above-quoted portion of rule 7, or the court, of its own motion, will disregard the alleged error based upon the insufficiency of the evidence. In view of the above, respondent's denial is not well taken in this instance.

[2][3]Respondent also objects to our consideration of the sufficiency of the evidence to sustain the findings of fact, for the reason that the motion for a new trial, as shown by the printed record, wholly fails to point out wherein the testimony is insufficient. It is not necessary that the specifications of error used upon the motion for a new trial and the specification of particulars wherein the evidence was insufficient be printed in the brief, and then that the same matter be reprinted in the assignments of error; but it is essential, when the question of sufficiency of the evidence is raised on the motion for a new trial, and upon appeal, that the printed...