24 S.D. 457 | S.D. | 1910
This matter comes before the court upon an appeal from an amended judgment rendered by the trial court. It appears that this cause was tried before the lower court in the year 1906, and findings of fact and conclusions of law were made and entered and a judgment entered thereon. On the 25th day of May, 1907, the defendant, through his counsel, brought on for hearing before the trial court a motion asking such court to amend the judgment entered therein to' conform to the real judgment of the court as rendered. It further appears that this motion- was supported by affidavits and some of the records in this cause, and was resisted by'affidavits filed on behalf of the plaintiff. The motion was granted, and an amended judgment ordered entered nunc pro tunc, to' which an exception was taken by the plaintiff.
As we have noted above, the appeal herein is from the amended judgment, and does not purport to be from the order allowing the motion to amend. The only assignment of error to be found in the record is the' following: “And the appellant herein says there is manifest error on the face of the record, in this: The court erred in making and entering the amended judgment -herein appealed from.” It will be noted that in this assignment o-f error there is no reference whatever to the grounds upon which it is claimed the court erred in entering such amended judgment. It might be because the appellant believes that at the time the amendment wajs allowed the court was without jurisdiction; it might be because the findings of fact made by the court were insufficient to sustain the amended judgment; it might be because the pleadings were insufficient to -support such -a judgment; it might be because the evidence received on the motion to amend judgment was immaterial and insufficient to justify the amendment; or it might be that the evidence re
It might be claimed, however, that, regardless 'of the insufficiency of the record in this court as- shown by the abstract, yet that -the respondent hás waived the same by joining in a discussion of an error complained of by appellant in his brief. The appellant in his brief claims that the court received incompetent evidence in support of the motion to amend the judgment, and the respondent has met this claim in his brief. It must, however, be conceded ' that, even if counsel for - the respondent by his brief can waive a specific assignment of error (and upon this question we advance no opinion), yet-counsel cannot, even by stipulation, give to this court the right or jurisdiction tó pass upon a question not raised by proper exception in the lower court.
The following is all of the record herein material to this point: “Thereafter counsel for -defendant Inman served the attached notice and affidavits by 'French- & Orvis, which are annexed hereto marked Exhibits ‘A’ and ‘B,’ respectively, and made parts hereof; that in opposition- to said motion the plaintiff Edmunds submitted the affidavits of C. H. Dillon and R. B. Tripp, hereto attached, marked ‘Exhibit C,’ and made a .part thereof; that the said motion was heard -upon the affidavits above. referred to, the defendant Inman’s answer and judgment of foreclosure referred -to in the notice of motion and found in the judgment roll, and ‘the sheriff’s report of sale’ referred to in the affidavits -of said Dillon and Tripp which is hereto attached marked ‘Exhibit D,’ and made -a part hereof, and now appears of record herein, No which the plaintiff Edmunds excepted, and his exception was- allowed by the court. -Settled by agreement of counsel and allowed by the court.” Upon the face of this record- it Would appear that appellant excepted to the receipt in evidence of Exhibit D; but conceding, for the purpose hereof, that the language above was susceptible of. an interpretation
There being therefore no sufficient record herein to bring before the court the alleged error discussed in the briefs herein, or to bring before the court any error whatsoever, it is the judgment and order of this court that the amended judgment be, and the same is, affirmed.
