Turner Tp. v. Williams

• Decision Date: 29 December 1903
• Citation: 97 N.W. 842,17 S.D. 548
• Parties: TURNER TP. v. WILLIAMS.
• Court: South Dakota Supreme Court

97 N.W. 842

17 S.D. 548

TURNER TP. v. WILLIAMS.

Supreme Court of South Dakota

December 29, 1903

Appeal from Circuit Court, Turner County; E. G. Smith, Judge.

Action by Turner township against Richard Williams for an injunction. From a judgment in favor of the plaintiff defendant appeals. Affirmed.

Hosmer H. Keith and L. L. Fleeger, for appellant. French & Orvis and Alan Bogue, Jr., for respondent.

FULLER J.

The exact location of the section line between the southwest quarter of section 25 and the southeast quarter of section 26, township 97, range 52, is the controlling question in this action to permanently restrain the defendant from obstructing a public highway existing for more than 20 years on a north and south section line which extends through Turner township. In disposing of this appeal it is also necessary to determine whether respondent township is precluded by a previous judgment pleaded in bar and sought to be introduced in evidence, together with other papers constituting a judgment roll in the case of Richard Williams plaintiff, against S.W. Hammond and Sydney Hammond defendants. The court sustained an objection made by counsel for respondent to the effect that no foundation had been laid for the introduction of the judgment roll in evidence; that it appears upon its face that the litigation was not between the parties to this action; that the issues were other than such as relate to the section line road in question; and for the further reason that the same is incompetent, irrelevant and immaterial. At the time the objection was made no particulars in which the foundation was considered defective were mentioned, and the fact that the various papers specified in the offer were sufficient to constitute a judgment roll, and are still so denominated by counsel for respondent, destroys the effect of their contention that it was incumbent upon appellant to first show that such papers had been attached together and filed as required by section 319 of the Revised Code of Civil Procedure. It being thus conceded that the identical judgment roll in question was produced and marked for identification for the purpose of introducing the same in evidence, there is no escape from the conclusion that there was actually a judgment roll, which, of necessity, is conclusive upon the proposition that the acts required by statute and essential to its existence had been performed. Moreover, there was attached to this record, when offered, an execution, together with the officer's return thereon, and a satisfaction of the judgment, which, under the circumstances, rendered unnecessary any further identification or foundation, for the reason that a judgment roll is absolutely essential to such proceedings. The objection, so far as it relates to the foundation for the introduction of such record, is not sustainable. It appears therefrom that the action of Richard Williams was against the two Hammonds personally for damages occasioned by their alleged trespass upon his premises in the following manner: "April 22, 1896, and on divers other days...