15 S.D. 470 | S.D. | 1902
This is an appeal by the plaintiff from a judgment entered in favor of the defendant in July, 1899, and from an order denying a new trial. In the spring of 1892 the plaintiff commenced this action in the county court of Rawrence county to recover of the defendant the amount claimed to be due upon a promissory note executed to him. On the 5th day of May a judgment by default was entered in favor of the plaintiff and against the defendant for the amount claimed to be due. Two days thereafter, on May 7th, the court, upon application of the defendant, set aside the default and granted the defendant leave to file an answer. On July 6th of the same year a trial was had, and by the court’s journal it appears that the case was regularly. called for trial, a jury waived, witnesses examined, and further trial continued until the following day. On the following day (July 7th) there was no mention of the case in the journal of the court, and no record of any judgment, except the following appearing in the docket opposite the title of the
The appellant contends that the court erred in overruling plaintiff’s objections to the affidavit of the court reporter, as the same was incompetent to establish a record of the court; and the court erred in making findings of fact and conclusions of law, as it had lost jurisdiction of the same by lapse of time; and the court erred in making its order setting aside the default judgment entered in favor of the plaintiff in May, 1892. It is further contended on the part of the appellant that, as it is provided by statute that “upon the trial of a question of fact by the court its decision must be given in writing and filed, with the clerk within thirty days after the cause is submitted for decision” (Laws 1893, Chap. 72, § 1), and no such decision being filed, the judgment subsequently entered was unauthorized and.null and void.- The provision requiring the findings of the court to be filed within thirty days has usually been regarded as directory, and a failure-to file the same within the time
It is further contended on the part of the appellant that if the findings and conclusions of law and judgment were regular in form, the conclusions of the court are not supported by the findings. In the answer which the defendant was permitted to file, he alleged, in effect, that to secure the payment of the note upon which the action was instituted he executed to the plaintiff a chattel mortgage upon certain live stock of the value of $375, which the plaintiff had converted to his own use, and he demanded judgment against the plaintiff for the value of the same, less the amount due upon the note in suit. This answer was interposed evidently upon the theory that the proceeding taken by the plaintiff to foreclose the chattel mortgage was irregular and invalid. Upon this subject the court finds as follows: “That the plaintiff appointed W. I. Wamsley, who took possession of the said ■ horses under the said chattel mortgage, gave due notice by publication, and that he sold the same at public auction at the court house in Deadwood; that all the proceedings on said foreclosure, as agreed by the parties,
The learned counsel for the appellant contends that inasmuch as this court has held that the failure to have the sale of real property confirmed, where the proceedings are shown to be regular in every respect, will not defeat the purchasers’ title, the same rule should be applied to the case at bar. Baxter v. O’Leary, 10 S. D. 150, 72 N. W. 91, 66 Am. St. Rep. 702. There is a broad distinction between the confirmation of a sale of real estate and the report of the sale of chattel property under the act of 1889. In the case of real property the order of confirmation is made prima facie evidence of the regularity of the proceedings, and the absence of such confirmation imposes the burden upon the party claiming under the sale to affirmatively show that the proceedings were regular, but it is nowhere declared that the failure to make such confirmation renders the sale invalid.
It is further contended by counsel that in construing section 5 of this act the court held that the failure to make the sale within twenty days did not have the effect of releasing the lien of the mortgagee. Agricultural Works v. Baker, 11 S. D. 342, 77 N. W. 586. That decision was placed upon the ground that the mortgagee under the act might foreclose either by advertisement or
Finding no error in the record, the judgment of the county court and the order denying a new trial are affirmed.