13 S.D. 356 | S.D. | 1900
This is an action to foreclose a mortgage given by the defendants Patrick McCarthy and wife to secure the payment of $5,675 claimed to have been loaned Patrick McCarthy by the plaintiff. Findings and judgment were in favor of the plaintiff, and subsequently a new trial was granted, and from the order granting a new trial the plaintiff appeals.
On May 4, 1897, the court made its findings of fact, and stated its conclusions of law thereon. On May 7th said findings of fact,'conclusions, of law, and judgment were personally served upon the attorney for the defendants, and the receipt of a copy thereof was admitted. There is a controversy as to whether or not the party admitting such service was authorized to make such an admission in the name of the attorney of record, but, in the view we take of the case, this is not material, and we shall therefore assume that the admission of service was properly signed. On November 12, 1897, written
On the 16th of March, 1898, the circuit judge who tried the cause settled a bill of exceptions and attached his certificate thereto, and filed the same with the clerk; acting upon the theory that no amendments had been filed. On the same day the judge ascertained from the clerk, that amendments to the bill of exceptions had been filed, and he thereupon caused to be filed an order in which he recites the fact that he had settled the Dill of exceptions on the 16th, and that thereafter, upon the same day, his attention had been called to the fact that the plaintiff objected to the form and contents of the proposed bill of exceptions, and had served and left with the clerk amendments thereto, which were not presented to him at the time of the settlement; and he therefore appointed Monday, the 21st of March, 1898, as the time for hearing the arguments of counsel upon the said matter. On the 21st day of March the de
This brings us to the merits of the order granting a new trial. The answer of Patrick McCarthy and Maggie McCarthy set up, among other defenses, the following: “And for a fourth defense to said complaint these defendants allege that the court has no jurisdiction of the person of the said defendants or of the subject of the action, for that the presiding judge of said court is the Honorable William Gardner, and that the wife of said judge, to wit, Charlotte Gardner, is a stockholder of the plaintiff and one of the directors thereof, and that the