Wolf v. Sneve

• Decision Date: 21 May 1909
• Parties: WOLF v. SNEVE et al.
• Court: South Dakota Supreme Court

23 S.D. 260

121 N.W. 781

WOLF

v.SNEVE et al.

Supreme Court of South Dakota.

May 21, 1909.

Appeal from Circuit Court, Custer County.

Mandamus by Joshua J. Wolf, whose interest is held now and owned by Fred H. Rugg, receiver of Hulst & Price, against Albertine Sneve and others, constituting the School Board of Spring Creek School District, No. 14, of Custer County. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Affirmed.Chauncey L. Wood, for appellants.

Fred. H. Whitfield, for respondent.

WHITING, J.

This is a mandamus proceeding, brought in the circuit court by plaintiff and respondent against defendants and appellants. Upon the application filed in such circuit court, an alternative writ was issued, to which a return was made, answering the said writ and denying the grounds for the relief. To this return a reply was made. Upon the issues so joined the matter was tried to the court without a jury. The court made findings and conclusions favorable to the respondents, and judgment was entered in accordance therewith. Appellants moved the trial court for a new trial, which motion was objected to, and the trial court denied the same. The cause is now before this court upon appeal from such judgment and order denying a new trial.

A dispute arises between the appellants' abstract and the additional abstract of respondent as to what evidence was received upon the trial, and the respondent calls attention to the fact that no bill of exceptions or statement of the case was ever settled herein. The notice of intention to move for a new trial specifies as the grounds thereof those stated in subdivisions 1, 3, 6, and 7, § 301, Rev. Code Civ. Proc., and such notice of intention states that it “will be made and based upon the record pleadings and proceedings herein, including all affidavits and exhibits used as and constituting the evidence in the case.” The grounds mentioned in said subdivisions 1 and 3 are abandoned on appeal. There was nothing further in such notice to show whether the same would be based on a bill of exceptions, statement of the case, or minutes of the court. The motion for a new trial was afterwards presented to the trial court, attached to which motion were 11 assignments of error; such assignments all going in effect to the one question of the sufficiency of the evidence to sustain the findings and conclusions of the trial court. Respondents resisted such motion for new trial, and objected to the hearing of the same, for the reasons that there was no bill of exceptions or statement of the case, that said motion was not based on any bill of exceptions, statement of the case, or minutes of the court, and...