Westphal v. Nelson

• Decision Date: 02 March 1910
• Parties: WESTPHAL v. NELSON.
• Court: South Dakota Supreme Court

125 N.W. 640

25 S.D. 100

WESTPHAL v. NELSON.

Supreme Court of South Dakota

March 2, 1910

Appeal from Circuit Court, McCook County.

Action by Carl W. Westphal against Peter Nelson. From a judgment for defendant and an order denying a new trial, plaintiff appeals. Affirmed.

M. A Butterfield, for appellant.

Keith Danforth & Keith and E. H. Wilson, for respondent.

HANEY J.

This is an action, in the nature of ejectment, to recover possession of "a strip of *** land *** four rods, more or less wide along the entire west side" of the S. E. 1/4 of section 7 in township 101, range 53, McCook county, and damages for the use of the same. It involves the location of the boundary line between the S. E. 1/4 and S.W. 1/4 of the section named. A verdict having been returned in favor of the defendant on all the issues, judgment for costs entered thereon, and plaintiff's motion for a new trial denied he appealed from the judgment and from the order denying his application for a new trial.

It is contended by respondent that, whereas the application for a new trial was based on a bill of exceptions containing no specifications of the particular errors relied upon, and the notice of intention did not designate any of the statutory grounds upon which the motion for a new trial would be made the application was properly overruled, and that the only question reviewable in this court is whether the judgment is supported by the pleadings and verdict. In the absence of an additional abstract, reference to the original record cannot be made in this court; the rights of the parties depending on the contents of appellant's abstract. It is silent as to the grounds, if any, designated in the notice of intention, and as to whether the motion for a new trial was made upon affidavits, the minutes of the court, a bill of exceptions, or a statement of the case. Rev. Code Civ. Proc. § 303. It is an elementary rule of appellate procedure that every reasonable presumption will be indulged to sustain the action of a trial court. It must therefore be assumed, in the absence of any statement of the grounds designated in the notice of intention, that the motion for a new trial was properly overruled, or disregarded by the circuit court, and it must be disregarded in this court. Nevertheless, as an appeal may be taken from a judgment, even though no motion for a new trial has been made in the lower court, it becomes necessary to consider such questions as are properly presented by the appeal from the judgment. First National Bank v. Comfort, 4 Dak. 167, 28 N.W. 855; Le Claire v. Wells, 7 S. D. 426, 64 N.W. 519; Jones Lumber Co. v. Faris, 5 S. D. 348, 58 N.W. 813; Id., 6 S.D. 112, 60 N.W. 403, 55 Am. St. Rep. 814; Carroll v. Nisbit, 9 S. D. 497, 70 N.W. 634; Dunn v. National Bank, 11 S.D. 305, 77 N.W. 111; Dring v. St. Lawrence Tp., 122 N.W. 664; Grasinger v. Lucas, 123 N.W. 77; Albien v. Smith, 123 N.W. 675. On an appeal from the judgment alone, in the absence of a bill of exceptions, the only question is whether the judgment is supported by the pleadings and verdict, or the court's findings of fact. In other words, whether any error appears upon the face of the record. Where, however, the appeal is from the judgment alone and a bill of exceptions has been settled, all errors appearing on the face of the record, which embraces the bill of exceptions, may be reviewed, provided the particular errors relied on for reversal are specified in the bill. Schouweiler v. McCaull, 18 S.D. 70, 99 N.W. 95. In the case at bar a bill of exceptions was settled containing the following specifications of error: "(1) The defendant insists that he was prevented from having a fair trial by the court permitting evidence to be introduced by the defendant as to what George W. Cole said in regard to the line surveyed by Mr. Lang between himself and Mr. Nelson, and refusing to permit any of the plaintiff's witnesses to testify to anything which Mr. Cole said on the same subject. (2) The court also erred in refusing plaintiff's motion to strike out the evidence of the defendant's witnesses in regard to the relocation of the lost corner at the close of all the evidence. (3) Other errors of the court which prevented the plaintiff from having a fair trial are included by the various exceptions to the ruling of the court, which the plaintiff preserved in the foregoing bill of exceptions. (4) The court also erred in permitting the defendant's attorney to bulldoze and confuse the witness Conn Gillespie in the manner in which the record shows he did do, which the records clearly show was done by the defendant counsel for the purpose of affecting the standing of the witness with the jury, and in attempting to belittle and ridicule the witness Conn Gillespie. All of which is respectfully submitted." Manifestly none of these except perhaps the second is sufficiently specific. During the trial of a cause many rulings may be excepted to which an appellant would not rely on for reversal. The law therefore wisely requires that he shall, at the close of his bill or statement, distinctly point out or specify each particular ruling he desires to have reviewed. Only such as are thus pointed out will be considered...