Holbert v. Parish

159 N.W. 871 | S.D. | 1916

WHITING, J-

This is an appeal from air order refusing to vacate a judgment.

[1, 2] Appellant concedes that a verdict was returned in lavor of the plaintiff and against the defendant and that such verdict was handed to the clerk of the trial court, but alleges that the clerk failed to enter the verdict, and that it has never been entered, and contends that, for the above reasons, the judgment entered upon such verdict must be set aside. Appellant concedes that such judgment is not void. It appears that the verdict was not entered at length in the minutes kept by the clerk, but such minutes do contain the following- entry:

“Court convenes at 9 a. m. April nth, and jury returns a verdict for plaintiff in case of Fanny Hol'bert v. Hart Parish and assess her damages at $ioo.oo.’’

Section 274, C. C. P. directs • that the verdict he set out at length. Appellant, by conceding that the judgment is not void, concedes that this requirement is not jurisdictional. Appellant concedes that the trial court could even yet require the clerk to make the proper entry, but contends that, until such entry is made, no judgment can rightfully be entered. Even if it should be conceded 'that the entry as made was not sufficient to comply with the statute, yet we are of the opinion- that the trial court had the power, and still has the power, to- direct the proper entry to be made nun-c pro tunc. The appellant has not shown wherein he has been prejudiced under the facts shown. In the absence of such showing as will create a presumption of prejudice, appellant is not entiled to a reversal of the order appealed from. Section 1, c. 178, Laws 1913.

The order appealed from is affirmed.