Williams v. Williams
Decision Date | 26 April 1894 |
Citation | 6 S.D. 284,61 N.W. 38 |
Parties | WILLIAMS, Plaintiff and appellant, v. WILLIAMS, Defendant and respondent. |
Court | South Dakota Supreme Court |
Appeal from Circuit Court, Pennington County, S.D.
Modified
James W Fowler, James Boyd
Attorneys for appellant.
Charles W. Brown, Henry Frawley, Deadwood, S.D.
Attorneys for respondent.
Opinion filed April 26, 1894
This was an action for a divorce, brought by the plaintiff. The defendant answered, and filed a cross complaint praying for a divorce from the plaintiff. A trial was resulting in a judgment in favor the defendant upon her cross complaint for a divorce from the plaintiff and subsequently a judgment for alimony in favor of the defendant for the sum of $30,000 was rendered, and an order made allowing her $2,200 as temporary alimony and counsel fees. A motion for a new trial was made and denied.
The trial for divorce was had in March, 1892. In August, 1892, a trial was had to determine the amount of alimony to be awarded to the said Eliza T. Williams, the respondent, resulting in findings and judgment for the sum of $30.000 as above stated. The motion for a new trial was made and determined in August, 1893. A motion is made in this court to dismiss the appeal in this case upon the grounds stated in the following notice: “That the said appeal is bad for duplicity in this, to wit: That in and by said notice of appeal the said appellant appeals to this court from the judgment rendered herein on the 31st day of August, 1892, in favor of the respondent and against the appellant for the sum of $30,000 alimony and $504.92 costs; and likewise appeals from that certain order entered herein on the 31st day of August, 1892, ordering the plaintiff, William Williams, within fifteen days from that date to pay to the defendant, Eliza T. Williams, the sum of $2,200 as and for her counsel fees and temporary alimony in this action, and from the whole of said judgment and order; and likewise appeals from the order entered herein on the 19th day of August, 1893, denying and overruling plaintiff’s motion for a new trial herein and to vacate and set aside said judgment and order of August 31, 1892; and that, although the said appeal is double as aforesaid, but one undertaking on appeal has been served or filed herein.” The notice of appeal is as follows:
“Take notice that the plaintiff, William Williams, hereby appeals to the supreme court of this state from the judgment rendered herein on the 31st day of August, 1892, in favor of the defendant for the the sum of thirty thousand dollars alimony, and $504.92 costs; and also from that certain order entered herein on the 31st day of August, 1892, ordering the plaintiff, William Williams, within fifteen days from that date, to pay to the defendant, Eliza T. Williams, the sum of $2,200 as and for her counsel fees and temporary alimony in this action, and from the whole of said judgment and order; and hereby appeals from the order entered herein on the 19th day of August, 1893, denying and overruling plaintiff’s motion for a new trial herein, and to vacate and set aside said judgment and order of August 31, 1892.”
That an appeal can be taken from the judgment and order overruling the motion for a new trial in the same notice is not questioned, as this court has held that such a notice of appeal is proper. Hawkins v. Hubbard, 2 S.D. 631, 51 N.W. 774 (1892). But the difficulty in this ease arises from including also in the notice of appeal the order for the payment of $2,200 counsel fees and temporary alimony. This order was made as a separate order, and on the same day that the judgment awarding $80,000 was made and entered. Counsel for appellant contend that the reference to the order in the notice of appeal should be treated as surplusage, as the order is one that can be reviewed upon the appeal from the final judgment. Without at this time passing upon the question of whether or not the order can be reviewed as an intermediate order, we are of the opinion that it may properly be treated as surplusage in the notice of appeal, and disregarded. The decision in the case of Hackett v. Gunderson, 1 S.D. 479, 47 N.W. 546, decided by this court, does not rule this case, as the appeal in that case was from two appealable orders. The orders being of the same character, this court held that the appeal was a double appeal, and not an appeal from either order, as the court could not determine from which order the appellant really intended to appeal. But in the case at bar an appeal is taken from the judgment and from the order overruling a motion for a new trial. The evident purpose and intention of the appeal is to obtain a review of the judgment. Where the principal object of taking the appeal is so apparent from the record, we think this court is justified in presuming that the appeal was intended to be taken from the judgment, and not from the order granting temporary alimony. In an appeal from two orders or two judgments this presumption could not properly be made, as the court could not, by inspection of the record, determine the intention of the party taking the appeal. We are of the opinion, therefore, that in this case the appeal from the order for temporary alimony should be disregarded, and the motion to dismiss the appeal is therefore denied. No injury can result to the respondent from this holding, as the time for taking the appeal from the judgment has not expired, and a dismissal would only result in delay and additional expense in taking a new appeal.
This brings us to the principal question presented by this appeal, namely: Does the evidence justify the finding of the court that appellant was possessed of personal property of the value of not less that $125,000, and that the sum of $30,000 is a just, reasonable, and suitable allowance to be made by the appellant to the respondent for her support during her life, having regard to all the circumstances of the parties respectively? These findings of fact are challenged by the appellant on the ground that the evidence is insufficient to justify them. It becomes necessary, therefore, for this court to review the evidence, and ascertain whether or not there, is a preponderance of evidence against the findings of the court. Randall v. Burk Township, 4 S.D. 337, 57 N.W. 4 (1893). Unless the evidence does so preponderate in favor of the contention of the appellant the judgment cannot be disturbed. The evidence is exceedingly voluminous, the record covering over 200 closely printed pages and we shall not attempt to do more than to state our conclusions resulting from its examination. There is a marked differance between the claims of the respective parties as to the value of the appellant’s property, appellant’s counsel contending that the evidence only shows that he had property, at the time of the trial, of the value of $12,500, while the counsel for respondent insists that it was of a greater value than that found by the court. This difference grows out of the views of counsel as to the amount and value of the property possessed by the appellant. As to the value of appellant’s property —independent of 455 shares of stock in Williams, Hoyt & Co., a corporation—being about $12,500, there is no substantial controversy. Appellant contends that the evidence shows that he only owned 5 shares of the said stock at the time of the trial, and that it was only of the value of $60 per share, while the respondent contends that the evidence shows that he had 455 shares under his control, and that its value was over $300 per share. The evidence as to the number of shares under the control of or owned by appellant is conflicting, but we are of the opinion that the court was justified in finding therefrom that the 455 shares of stock was either actually owned by, or was under the control of, the appellant. It is true that by the stock book of the company he appears to have had but 5 shares standing in his name at the time of the trial, but we are of the opinion that 250 shares issued in the name of A. C. Williams, brother of the appellant, 100 shares issued in the name of Thomas Williams, a cousin, and 100 shares issued in the name of the present wife of appellant having been transferred to these parties without consideration by appellant, should be considered as belonging to the appellant, or under his control. We shall consider the evidence of value under three heads: Value of the corporate property received from the old firm of Williams & Hoyt, value as indicated by net receipts and dividends, and value as indicated by sales of the stock by evidence of its market value.
The undisputed evidence is that the property of the corporation was derived from the firm of Williams & Hoyt, and was inventoried at the time the corporation was formed at about $110,000, including the good will of the firm. It does not appear from the evidence that any additions were made to the property of the corporation after the transfer to it by the firm Williams & Hoyt. The corporation was organized with a capital stock of 1,000 shares, of the par value of $100 per share, making a total capital stock of $100,000. Of this appellant had issued to himself one half or 500 shares, and the other 500 were issued to Mr. Hoyt, the other member of the firm of Williams & Hoyt. Taking, then, the value of the property transferred to the corporation by the firm of Williams & Hoyt, which we have seen was $110,000, as a guide, we think $100 per share would be a fair cash value for the stock, as there would naturally be more or less depreciation in the value of machinery, etc., between 1888 and 1892. Its value as indicated by the net profits and dividends would seem to lead to about the same conclusion. It appears from the statements of Mr. Hoyt, made to the directors of the company, and who was the financial manager and bookkeeper, and who appears to have been a fair and candid witness, that the net receipts from June,...
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