8 S.D. 240 | S.D. | 1896
This case, now before us for the second time, is an action in claim and delivery to obtain the immediate possession of certain grain for the purpose of foreclosing a statutory lien for threshing the same. There was a trial in the court below without a jury. Judgment was entered against the defendant upon findings of fact and conclusions of law favorable to plaintiff, and the defendant appeals. The judgment was reversed, and upon application of respondent’s counsel a rehearing was awarded. A full statement of the facts is contained in our former opinion, reported in 62 N. W. 435, and, so far as we shall adhere to the law applied thereto, a reproduction thereof is unnecessary. At the former hearing respondent’s counsel made no argument, and no brief was filed in his behalf. It was contended by counsel for appellant then, as now, that there was no evidence or finding that S. J. Flynn (respondent’s assignor) was the owner of and operated the machine with which the grain in controversy was threshed, and that the court failed to find ‘ ‘that said S. J. Flynn has made an account in writing, stating the kind of grain and the number of bushels threshed, the price agreed upon for such work, and that the same was not in excess of the price usually charged for such services, the name of the person for whom such threshing was done, and the description of the land upon which said grain was grown, and that he made oath to the correctness of the account.” So far as essential to a determination of the questions which we find is necessary to reconsider, Chap. 88 of the Laws of 188.9,, .creating a lien for threshing, is as follows;
It is alleged in the complaint and admitted in the answer that the plaintiff, S. J. Flynn, owned and operated the threshing machine with which, and at the time, the grain in controversy was threshed. The question not being at issue, no finding of fact thereon was necessary. Humpfner v. D. M. Osborne & Co., 2 S. D. 310, 50 N. W. 88; Barto v. Himrod, 8 N. Y. 483. While the court’s findings of fact, like a special verdict of a jury, when considered with the pleadings in the case, must support the judgment based thereon, issuable facts, tendered by the complaint, and admitted or not denied in the answer, require no findings by the court, Fox v. Fox, 25 Cal.
