148 N.W. 626 | S.D. | 1914
Lead Opinion
This court, for reasons stated in its opinion found in 32 S. D. 29.8, 142 N. W. 1130, 'struck from the records on file in this cause the pretended settled bill or statement settled by the trial court, and struck from appellant’s brief those parts thereof based upon such pretended settled bill or statement. Appellant thereafter failed to procure any settlement of the record •herein, thus leaving this cause before us upon appeal presenting, if any question, but one: Do the findings of the court support the •conclusions and judgment?
So far as material to this decision, the court’s findings were: That at and prior to January 28, 1905, the husband of plaintiff was the owner in fee of the property hereinafter described; that, at that time and continuously for about two -years prior thereto, plaintiff and her husband were 'both residents of this state and were occupying as their home a dwelling house situate upon the southerly end of the parcel of ground involved in this action; that the premises in question constitute one contiguous parcel or plot of ground bordering upon two streets, said parcel of ground being some i'5o feet in length north and south and 30 feet wide; that at all times hereinbefore mentioned, there was situate on the northerly end or portion of said lot a stone building facing to- the north, having an entrance at the northeast corner thereof, with another entrance upon the street to the east of said building at a point midway in the east wall of such building, but having no entrance at the south end and with no means of direct communication between such stone building and the dwelling house; that the dwelling house and stone building are not separated from each other by any barrier, fence, or partition other than the walls of said buildings, and that there lies between the said buildings a space of some 21 feet in width, in which space there is situate a cess-pool connected by plumbing with both of said buildings and used in connection with both of said buildings; that during the time plaintiff and her husband were living together upon said premises and occupying the dwelling house aforesaid as their home, plaintiff’s husband used and occupied the stone building aforesaid in the prosecution and carrying on of a saloon business, which was the ordinary business and occupation of said husband during all of said time; that said property and premises do not exceed one acre in extent, nor do their exceed in value the sum of $5,000, nor did'
Upon these findings the court concluded, as matters of law: That the stone building was not a part of nor appurtenant to the dwelling house; that the mortgage was and is null and void as to all that portion of the premises upon which the dwelling house is situate and upon the south half of all the ground lying between the dwelling house and the stone building; that the mortgage and the record of foreclosure thereof and the sheriff’s deed, if any, based upon such foreclosure, should be canceled in so far as the same includes, describes, or affects the premises declared exempt from such mortgage; and that a decree should be entered establishing and adjudging the said exempt premises to be the homestead of plaintiff, and allowing plaintiff the possession and right of possession thereof. A decree was entered in accordance with such conclusions, and 'it is from such decree and an order denying a new trial that this appeal was taken. Respondent contends that the assignments of error do not present the above question, but, while the sufficiency of the findings to support the conclusions and judgment is not questioned as clearly and directly as good practice might require, yet we are of the view that such question is presented by the assignment.
• The real issue is whether or not the stone building was, at fhe time the mortgage was given, a part of and included within the homestead of appellant and husband. Section 3225, Pol. Code,' provides:
“It [the homestead] must not embrace more than one dwelling house or any other buildings except such as are properly appurtenant to the homestead as such; but a shop, store or other building situated thereon and really used or' occupied by the owner in*373 the prosecution of his own ordinary business may be deemed appurtenant to such homestead.”
“If, from a consideration of the probative facts, this court should determine that they did not justify the finding of the ultimate fact, it would determine that the evidence was insufficient to justify the decision. This, it has been repeatedly held, cannot be done in this mode.”
While the word “may,” when used in a statute, will often be construed “shall” or “must” when, to so construe it is necessary in order to carry out the clear intent of the statute, or to enforce a' right possessed by a party, or when the statute provides that something may be done which will tend to’ promote justice or advance the public good, yet as a general rule the word “may” when used in a statute is permissive only, and operates to confer discretion, and “may” should never be construed “shall” or “must” for the purpose of creating a right. 36 Cyc. 1160, 1161; case note S L. R. A. (N. S.) 340. The statute before üs is permissive and not mandatory.
The judgment and order appealed from are affirmed.
Concurrence Opinion
concurs in the conclusion that the judgment should 'be affirmed.