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Hazen v. Thompson

Hazen v. Thompson, 146 N.W. 1070 (S.D. 1914)
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Court
South Dakota Supreme Court · State Highest Courts
Decided
April 27, 1914
Judges
Gates
Citations
146 N.W. 107033 S.D. 6461914 S.D. LEXIS 64
Disposition
Affirm'ed.
Cited by 4
Headnotes
Appeal — Error—Review—Findings—Motion for New- Trial — Assignment of Error — Brief. Where there is no assignment of error that the trial -court erred in denying the motion for new trial, the Supreme Court - will not consider the sufficiency of the evidence to sustain findings or verdict.
Summary
Appeal from 'Circuit ’Court, Turner Co-unity. Hon. Robert B. Tripp, Judge. Action by Arthur V. Hazen against K. Thompson, for foreclosure of a mortgage -of realty. Erom a judgment for plaintiff, and from an orcfer denying a new trial, defendant appeals. Appellant’s statement of the case shows that the specifications of error on which the motion for new trial were presented were identical with those assignments of error on appeal, so that the identical errors which were presented- in the motion for a new trial are assigned as errors on appeal and there can -be no doubt but that they are sufficient. The record shows that the motion for a new trial was overruled and exceptions were taken concerning every error assigned, also overruled, and everyone of these errors are assigned as errors in this court, and are sufficient. No assignment of error is claimed, in the trial court overruling appellant’s motion for a new trial; hence, there is nothing before the Supreme 'Court for review. Rule No. 5 of the 1913-Ru-les of the Supreme Court. In ¡the absence of an assignment -of errors, the Supreme Court is not required to review the proceedings of the court below, and its duty in such a -case -is to affirm the judgment of the circuit court. Williams .Bros. Lumber Co. v. Kelly, (S. D.) 122 N. W. 646.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Gates

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GATES, J.

This cause was tried by the court without a jury. The findings of fact and conclusions of law were in favor of the plaintiff, and.judgment was entered accordingly. A notice of intention to move for a new trial was given. Defendant specified eight certain errors upon which the motion for a new trial would -be based. These alleged errors were all -predicated upon the insufficiency of the evidence to sustain the findings. The motion for a new trial was denied. From the judgment and order denying a new trial, defendant appealed.

In his brief upon appeal, appellant adopts the specifications of error used upon -the motion for a new trial as his assignment of errors upon appeal. The action -of the trial court, however, in denying a new trial is not assigned as error. Respondent. in his brief filed on October 17, 1913, called thé attention of counsel -for appellant to this -defect. Such counsel did not ask -leave -to amend his -brief but ignored the descisions -of this court hereinafter cited and insisted in his reply brief that his assignment of errors was süfficient.

*648 It has been consistently held by this court, beginning with the early days of statehood, that where there is no assignment that the.trial court erred in denying- the motion for a new trial this court is precluded from considering the sufficiency of 'the evidence to sustain the findings or verdict. Pierce v. Manning, 2 S. D. 517, 51 N. W. 332 ; Barnard & Leas Mfg. Co. v. Galloway, 5 S. D. 205, 58 N. W. 565 ; Carroll v. Nisbet, 9 S. D. 497, 70 N. W. 634 ; Wolf v. Sneve, 23 S. D. 260, 121 N. W. 781 ; Williams Bros. Lumber Co. v. Kelly, 23 S. D. 582, 122 N. W. 646 ; Whaley v. Vidal, 26 S. D. 300, 128 N. W. 331 ; rule 5 of this court ( 140 N. W. viii ).

There being nothing else in the record for us to review, the judgment and order appealed from are affirmed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 4 cases

View all citing references →
1915: 11921: 11926: 11930: 119152026peak 1915 · 1

Relies on it most ⓘ

  1. Hipple v. Strohbehn182 N.W. 535 (S.D. 1921)
  2. Anderson v. Standard Accident Insurance Co. of Detroit155 N.W. 1 (S.D. 1915)
  3. First Natl. Bank v. Wollmann231 N.W. 539 (S.D. 1930)
  4. Security National Bank v. Crawford210 N.W. 982 (S.D. 1926)

Most recent

  1. First Natl. Bank v. Wollmann231 N.W. 539 (S.D. 1930)
  2. Security National Bank v. Crawford210 N.W. 982 (S.D. 1926)
  3. Hipple v. Strohbehn182 N.W. 535 (S.D. 1921)
  4. Anderson v. Standard Accident Insurance Co. of Detroit155 N.W. 1 (S.D. 1915)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 6

DepthCaseCited by
Pierce v. Manning, 51 N.W. 332 (S.D. 1892) 31
Barnard & Leas Manuf'g Co. v. Galloway, 58 N.W. 565 (S.D. 1894) 17
Carroll v. Nisbet, 70 N.W. 634 (S.D. 1897) 12
Williams Bros. Lumber Co. v. Kelly, 122 N.W. 646 (S.D. 1909) 10
Whaley v. Vidal, 128 N.W. 331 (S.D. 1910) 10
Wolf v. Sneve, 121 N.W. 781 (S.D. 1909) 4

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