18 S.D. 540 | S.D. | 1904
As indicated by the prayer of the complaint, this action was instituted to confirm plaintiff’s title to certain railroad property, determine adverse claims thereto, have a receiver appointed, a sale ordered, and disposition of the funds arising from such sale decreed. The cause was tried without a jury. A decision favorable to the plaintiffs was rendered, and certain of the defendants appealed from the judgment alone. As the sufficiency of the evidence to sustain the findings of fact which correspond with the allegations of the complaint cannot be challenged on this appeal, the only questions demanding consideration are alleged errors in law occurring at the trial, and whether the findings support the decree.
These facts, among others, are established by the decision: From March 1, 1891, to June 6, 1895, the defendant the Dakota, Wyoming & Missouri River Railroad Company was the owner of a certain right of way, roadbed and railroad grade 34 miles
An application for a continuance over the term, supported alone by the following affidavit, was refused: “William T. Coad, being first duly sworn, deposes and says: That William H. Parker, of Deadwood, South Dakota, is the attorney for the Dakota, Wyoming & Missouri River Railroad Company, Joseph H. Muhlke, and this affiant; that said Parker is now engaged in the trial of an important case before Judge Rice, at Deadwood, and expects to be so engaged for several days more; that it is impossible for said Parker to be in Rapid City at the present term of court, to participate in the trial of the above named
The contention that the court below was without jurisdiction because the action had been removed to the United States Court is not supported by the record. Appellants’ abstract contains a copy of the petition for removal and this statement: “Said cause was therefore removed to the circuit court of the United States by order of Hon. Levi McGee, and by the circuit court of the United States remanded to the circuit courtof the Seventh Judicial Circuit of the state of South Dakota for trial.” Upon this state of facts it must be presumed that the action was properly remanded to the state court.
Attention is called by appellants’'brief to certain statutory provisions and legal propositions relating to the limitations of actions, but their application to the facts found in this case is nowhere pointed out. Every presumption prevails in favor of the correctness of the conclusions reached by the trial court. It is not the duty of this court to seek-for errors.- None being apparent in this connection, the subject requires no further consideration.
Plaintiffs attempt to assail the orders appointing a receiver and allowing him $500 for his services. Assuming that such orders may be reviewed on an appeal from the judgment alone, the action of the circuit court in relation thereto -cannot -be disturbed. A receiver may be appointed by the court in which an action is pending, or by the judge thereof, in all -cases where receivers have heretofore been appointed by the usages of courts of equity. Rev. Code Civ. Proc. § 227. ' The principal grounds upon which courts of equity grant their extraordinary aid by the appointment of receivers pendente lite are
It is contended that appellants’ rights of redemption are ignored by the decree. The contention is not tenable. If the railroad company had any such right, it was lost by failure to redeem from the sale under the Woods & Moore lien. If appellants Muhlke and Coad were parties to the action wherein such lien was foreclosed, and failed to redeem in one year after the sale thereunder they, too, are precluded from objecting to the form of the decree in this respect. If, however, as we understand the record, they were not parties to either action in which the liens under which the plaintiffs claim title were foreclosed, they had, as against the plaintiffs, when the present action was begun, at most nothing more than an unforeclosed right of redemption (American Banking & Trust Co. v. Lynch, 10 S. D. 410, 73 N. W. 908), and the only question is whether such right was properly protected by allowing them until October 19, 1903, to redeem as provided by the decree. Another sale of the property as to them was unnecessary. Even in states where a mortgage merely creates a lien and does not convey the legal title, as in this state, the remedy by
Appellants further contend that the description of the property adjudged to be owned by the plaintiffs and directed to be resold should not include “the right of way” and “all franchises” of the appellant corporation. Whatever may be the common law rule concerning sales of corporate franchises on execution, we are aware of no reason why such sales may not be sanctioned by legislation as they certainly have been in this state. Liens, such as those through which plaintiffs derived title, attach to the “right of way” and “all land upon which the same may be situated,” to “the extent of all the right, title, and interest owned therein by the owner thereof.” Rev. Code Civ. Pro. §§ 698, 706. Therefore by the enforcement of such liens plaintiffs acquired whatever right the corpoation had to occupy and use the premises in question for' railroad purposes, and it was entirely proper for the decree to embrace the right of way and all franchises or privileges incident to its ownership and incident to ownership of the entire property. Assuming that the decree will be properly construed,. no reason exists.for modifying its phraseology.
. Proceedings under this judgment not having been stayed, an execution was .issued and the property sold, as therein directed. Subsequently the same defendants who appealed from the judgment took a separate appeal from the order .confirming the sale on execution. On the second appeal it is claimed that the court erred in confirming the sale (1) because
The judgment and order appealed from are affirmed.