174 N.W. 807 | S.D. | 1919
“Appellant’s attorney therebjr had written notice of the filing of the order overruling motion' for new trial on the 7th day of June, 1918.”
In the brief of the party appellant in the Anderson Case it was stated:
“Within the time limited by law therefor, the objector duly perfected her appeal to the 'Supreme Court of the state of South Dakota, from said' judgment and decree so entered herein, and from the whole and each and every ¡part thereof, and from said order overruling and denying the objector’s said motion for a new trial, and from the whole and each and every part of said order in the manner provided by law.” •;
In his answering brief, counsel who is now chiding this court, quoting from the above statement, omitted everything from the word “Dakota” down to and including the word “and,” preceding the words “from said,” and commenced the same word “from” with a capital. He thus made such statement to read as though such) appeal had been taken from the order only, and the appellant therein was asserting that it had been taken in time. After so emasculating the statement, counsel said, “This statement is not true,” and he called attention to the fact that the order was dated October 26, 1917, notice
“If the prevailing party wishes to take advantage of this short bar, and end further litigation, it is optional with him, but he ca'11 do so- only in_ the way here pointed out. He is not at liberty to adopt any service of papers by his. adversary as a .substitute for the service in this section required. * * * obviously, such service by the appellant was not made to start the time running against himself.”
If service of the order by appellant would not be a waiver of notice, certainly the procuring and filing of an order would not be such a waiver. No one would contend that counsel so intended It was not a waiver of notice, and it certainly was not the notice contemplated by statute. As supporting our views, see, also, Rohr v. Linch, 78 Misc. Rep. 45, 137. N. Y. Supp. 752; Orton v. Noonan, 32 Wis. 220; -Mallory v. See, 129 Cal. 356, 61 Pac. 1123.
Appellant bought of one Godfrey 42 head of cattle; he claims that later he bought 9 more of respondent. Godfrey and respondent testified that the nine were bought of Godfrey. Appellant claims that, as a part of the contract for the sale of the 42 head, Godfrey agreed that if any of the cattle died from certain named causes, he (Godfrey) would stand the loss. It is also appellant’s claim that Godfrey was but the agent of 'respondent in the sale of these cattle; that he; appellant, after-wards advised respondent of the agreement made by Godfrey; and that respondent agreed to abide by it. Appellant testified that three head died of the causes named, and that his damage thereby was $150. This he seeks to recover.
After the sale of the 9 cattle a settlement was made for the whole 51. As a part of such settlement appellant gave a note for ¡$2,450 and a chattel mortgage on the cattle. This note and mortgage ran to respondent. When this note fell due the cattle iwere unfit for sale. In settlement of said note, and to secure an extension of time to pay the indebtedness, appellant gave resspondent a new note with security. The new note was for some $800 more than the amount due on the first note. Appellant testified that this $800 was to be advanced him to pay debts he was then owing, to pay expenses of his son coming to help care for the stock, to pay for seed, and to pay for corn to feed the cattle. No part Of this $800 was furnished him except that $80 was advanced to the son. Appellant claims that he was unable to get money elsewhere, and that he lost a large amount of money from loss of crops through his inability to
Appellant also claims as further damages 7 per cent, per annum on the money not advanced. .
■Respondent testified' to expenses which he incurred in looking after the mortgaged cattle. He seeks, as a • counter claim, to recover the amount of such expenditures.
The court submitted to the jury appellant’s claims of damages from death, of cattle, and from want of corn to feed cattle; it also submitted respondent's counter claim. The jury returned a verdict for respondent, but without money damages.
The judgment and order appealed from arc affirmed.