165 N.W. 538 | S.D. | 1917
The hearing had upon the return of an- alternative writ of mandamus, or upon the return day of a motion for a peremptory writ, is a trial of issues of fact. The record made upon such a trial does not become any part of the judgment roll under section 3x9, C. C. P., until the same is in some manner settled. In case of an order granted upon affidavits or other written evidence, the record as to such order may be settled under rule 5 of the Trial Courts (22 ¡S. D. 1, Rules of Practice in Courts of Record Other Than the Supreme Court). The only other methods known to our practice for settling a record upon a trial of issues of fact are those provided by chapter 178, Laws 1913. It may be that, where there is no motion for- new trial, an appellant cannot, upon appeal, question the sufficiency of the evidence to support the finding's of the trial court; nevertheless there may have been rulings occurring at a trial to which a party may have saved exceptions and upon which he may desire to specify and assign errors.
The motion to- dismiss is denied.