File No. 5275, 5276 | S.D. | Jul 2, 1923
These are appeals from1 the judgments only. The cases arise out of a land transaction. One is an action for specific performance of a contract. The other is an action to foreclose a mortgage. The cases were tried together. Findings! of fact and conclusions o'f law favorable to the respective plaintiffs were m'adie and' judgments entered accordingly. No findings of fact were made on a number of issues raised by the answer and counterclaim1 in one case and by the answer in another. It is asserted that evidence was taken bearing upon such issues.
The findings and judgments were entered' on December 3, 1921. Within four days thereafter appellants served notice of intention to move for a new trial based upon a record to- be settled. On December 9, 1921, appellants ordered a transcript of the evidence, and the sum of $250 was immediately paid' to the court reporter therefor. No transcript was ever furnished, and-the time has elapsed within which a motion for a new trial might be made. 'Shortly- before the expiration of one year from the entry of judgment, the appellants appealed from the- judgments, and assign as error the failure of the trial court to pass upon all of the issues.
It appears that by reason of the neglect or incompetency of the court reporter the appellants have been denied the right to a hearing upon a motion for a new trial 'based upon a settled record.
The judgments appealed from are vacated, and the trial court is directed to make findings of fact-and conclusions of law upon all of the issues raised by the pleadings upon which evidence was offered, and to enter judgitnjenf accordingly. However, before, signing and filing such new> findings and conclusions, the trial court will cause a copy of the transcript of the evidence received Upon the trial to be made and delivered to the attorneys for appellant upon the payment of the necessary expense therefor in case the advance deposit of $250 is insufficient.
Note. — 'Reported in 194 N.W. 648" court="S.D." date_filed="1923-07-02" href="https://app.midpage.ai/document/giddings-v-nefsy-6690755?utm_source=webapp" opinion_id="6690755">194 N. W. 648. See Head note, American Key-Numbered Digest, Appeal and Error, Key-No. 11&5, 4 C. J. .Sec. 3188.