Keyes v. Baskerville

175 N.W. 874 | S.D. | 1919

GATES, J.

This was originally an appeal from a judgment and an order denying a new trial. The motion for a new trial was submitted to the trial court on June 17, 1918, and taken under advisement. It was denied August 13, 1918. The time for appealing from the judgment expired June 30, 1918, so that the motion for a new trial had actually been submitted before the expiration of such period,, and the rule announced in Grove v. Morris, 31 N. D. 8, 151 N. W. 779, would not apply. The appeal, so far as it purported to- be an appeal from the judgment, was dismissed. Keyes v. Baskerville, 170 N. W. 143.

The question now is: What errors assigned may now be reviewed upon that portion of the appeal remaining, viz., the appeal from the order denying a new trial? Are we now permitted to review any .alleged error that might have been reviewed upon the appeal from judgment?

As we understand the run of decisions of this court and of the courts of other states having statutes similar to ours, the following paragraphs lettered A, B, and C, cover the subject of what may be reviewed, and how, upon an appeal from an order denying a new trial and upon an appeal from a judgment. We have-not attempted to cite all of the decisions of this court especially upon the phase of the matter relating to the insufficiency of the evidence to justify the verdict.

[1] A. The several kinds of questions described in the following six subdivisions of section 301, 'C. C. P. (section 2555, Rev. Code 1919), ma)r not be reviewed on an nppeal solely from a judgment:

(a) Questions of irregularity or abuse of discretion described in subdivision i. As to the matters covered by this subdivision, see Hayne, New Trial & App. (Rev. Ed.), §§24-63.

(b) Questions of misconduct described in subdivision 2. See Hayne, §§ 64~74a.

(c) Questions of accident or surprise described in subdivision 3. See Hayne, §§ 75-86.

(d) Questions of newly discovered evidence described in subdivision 4. See Hayne, §§ 87-93'b •

(e) Questions of excessive damages described in subdivision 5. Swallow v. First St. Bk., 35 N. D. 608, 161 N. W. 207. See also Gamble v. Keyes, 39 S. D. 592, 166 N. W. 134. See Hayne, §§ 94-5.

(f) Questions of insufficiency of evidence described in subdivision 6. Pierce v. Manning, 2 S. D. 517, 51 N. W. 332; Norwegian Plow Co. v. Bellon, 4 S. D., 384, 57 N. W. 17; Barnard & L. Mfg. Co. v. Galloway, 5 S. D. 205, 58 N. W. 565; Gade v. Collins, 8 S. D. 322, 66 N. W. 466; Taylor v. Bank of Volga, 9 S. D. 572, 70 N. W. 834; McNab v. N. P. Ry. Co., 12 N. D. 568, 98 N. W. 353; Boss v. Van Wagenen, 20 S. D. 39, 104 N. W. 605; Stephens v. Baus, 20 S. D. 367, 106 N. W. 56; Subera v. Jones, 20 S. D. 628, 108 N. W. 26; Heald v. Strong, 24 N. D. 120, 138 N. W. 1114; Lyle v. Barnes, 30 S. D. 647, 139 N. W. 338; Lee v. Clark Imp. Co., 31 S. D. 581, 141 N. W. 986; Granmer v. Christian, 40 S. D. 202, 166 N. W. 1086. See, also, Hayne, §§ 96-98.

There is an exception to this rule where the judgment is entered after the order denying new’ trial is entered. In such case an appeal from the judgment brings up for review the order denying a new trial if such order is designated for review. Hawkins v. Hubbard, 2 S. D. 631, 51 N. W. 774; Granger v. Roll, 6 S. D. 611, 62 N. W. 970; Gade v. Collins, 8 S. D. 322, 66 N. W. 466; Hagaman v. Gillis, 9 S. D. 61, 68 N. W. 192.

[2] B. The two. following kinds of questions described in said section 301, C. C. P., may be reviewed upon a bill of exceptions (settled record) or upon the minutes of the court on an appeal from either a‘judgment or an order denying a new trial.

(g) The claim that the verdict or decision is against law described in subdivision 6. As to the definition and application of this clause, see Hayne, § 99; Gartner v. Mohan, 39 S. D. 202, 163 N. W. 647; Beck v. C. M. & St. P. Ry. Co., 39 S. D. 297, 164 N. W. 74.

(h) Errors in law occurring at the trial mentioned in subdivision 7. Wood v. Nissen, 2 N. D. 26, 49 N. W. 103; Jones Lbr. Co. v. Faris, 5 S. D. 348, 58 N. W. 813; Le Claire v. Wells, 7 S. D. 426, 64 N. W. 519; McPherrin v. Jones, 5 N. D. 261, 65 N. W. 685; Carroll v. Nisbet, 9 S. D. 497, 70 N. W. 634; McNab v. N. P. Ry. Co., 12 N. D. 568, 98 N. W. 353; MacGregor v. Pierce, 17 S. D. 51, 95 N. W. 281; Hedderich v. Heddericli, 18 N. D. 488, 123 N. W. 276; Russell v. Olsen, 22 N. D. 410, 133 N. W. 1030, 37 L. R. A. (N. S.) 1217, Ann. Cas. 1914B, 1069; Grasinger v. Lucas, 24 S. D. 42, 123 N. W. 77; H. C. Behrens Lbr. Co. v. Lager, 25 S. D. 139, 125 N. W. 574; Lyle v. Barnes, 30 S. D. 647, 139 N. W. 338; Williamson v. Voedisch Jewelry Co., 35 S. D. 390; 152 N. W. 508; In re Roberts’ Estate, 170 N. W. 580; Hayden v. City of Sisseton, 171 N. W. 88; Hayne, §§ 100-132.

[3] C. Matters- appearing upon the face of the judgment roll without the necessity of the settlement of a record may only be reviewed on an appeal from the-judgment, viz.: In relation $0 -the pleadings; as to whether the findings of fact support the conclusions or judgment; as to whether the verdict supports the judgment; and questions as to the correctness of intermediate orders necessarily affecting the judgment (other than orders referred to in subdivision 1 of said section 301, C. C. P.). Hayne, § 186; Hackett v. Gunderson, 1 S. D. 479, 47 N. W. 546; Pierce v. Manning, 2 S. D. 517, 51 N. W. 332; Norwegian Plow Co. v. Bellon, 4 S. D. 384, 57 N. W. 17; Parker v. Vinson, 11 S. D. 381, 77 N. W. 1023; Brown v. Brown, 12 S. D. 380, 81 N. W. 627; Loiseau v. Threlstad, 14 S. D. 257, 85 N. W. 189; Plunkett v. Hanschka, 14 S. D. 454, 85 N. W. 1004; Blackman v. City of Plot Springs, 14 S. D. 497, 85 N. W. 996; Sweatman v. Bathrick, 17 S. D. 138, 95 N. W. 422; Neeley v. Roberts, 17 S. D. 161, 95 N. W. 921; Wolf v. Sneve, 23 S. D. 260, 121 N. W. 781; Goldberg v. Sisseton L. & T. Co., 24 S. D. 49, 123 N. W. 266, 140 Am. St. Rep. 775; Hardin v. Graham, 38 S. D. 57, 159 N. W. 895; Christofferson v. Wee, 24 N. D. $06, 139 N. W. 689; Miller Co. v. Minckler, 30 N. D. 360, 152 N. W. 664; Fairmount & V. Ry. Co. v. Bethke, 37 S. D. 446, 159 N. W. 56; In re Roberts’ Estate, 170 N. W. 580; Hayden v. City of Sisseton, 171 N. W. 88.

[4] We have positively asserted the rule as to paragraph A (f) notwithstanding the fact that in Irwin v. Lattin, 29. S. D. 1, 135 N. W. 759, Ann. Cas. 1914C, 1044, there was expressed on page 5, par. 3, 29 S. D., and page 761, 135 N. W. (Ann. Cas. 1914C, 1044), a doubt as to the proper interpretation of the last sentence of section 463, C. C. P., and we have-also positively asserted the rule as to paragraph B (h) notwithstanding the fact that in Hepner v. Wheatley, 34 S. D. 338, 148 N. W. 594, a doubt thereof might be inferred from the language on page 341, par. 1, 34 S. D., and page 595, 148 N. W.

[5] In Carlberg v. Fields, 33 S. D. 410, 146 N. W. 560, this court held upon an appeal from an order denying a’ new trial, where a former appeal from the judgment alone had been dismissed, that it would not consider assignments of error that might have 'been presented upon the former appeal. The distinction between that situation and! this is that there a valid appeal had been taken and dismissed upon its merits. Here the appeal from the judgment was a nullity because not taken in time and the effect is the same as though no appeal had been taken. Aldrich v. Pub. Op. Pub. Co., 27 S. D. 589, 132 N. W. 278; Hayne, pp. 1517-1519.

In Irwin v. Lattin, supra, this court assumed, without deciding, that the sufficiency of the evidence to sustain the finding¡s in a court case might be reviewed upon an appeal from the judgment or upon appeal from the order denying new trial. It then held that because after judgment there had been a motion for new trial which had been denied, and because no appeal had been taken from- the order denying same, the court would not review that question on an appeal from the judgment.

In King v. Hanson, 13 N. D. 85, 99 N. W. 1085, the court said (their practice on new trial and appeal being like ours) :

“The first ground of the motion is based upon the assumption that the time for appealing from an order granting or refusing a new trial expires when the time for appealing from a judgment has expired. This is erroneous. The remedy afforded by an appeal from a judgment and the remedy by appeal from an order granting or refusing a new trial are wholly independent remedies. A party aggrieved may invoke one or the other, or both, at his election, provided only he doep so within the time and in the manner provided by statute. The periods of time in which these independent rights may be exercised are fixed by the statute, and are in no respect dependent one upon the other.”

See, also, McCann v. Gilmore (N. D.) 172, N. W. 236.

In Mueller Lbr. Co. v. McCaffrey, 141 Iowa, 730, 118 N. W. 903, no appeal had been taken from the judgment. The appeal from the order denying a new trial was taken after the right to appeal from the judgment had expired, but within the time allowed for an appeal from the order. It was held that the matters reviewable on motion for new trial might be reviewed on appeal, although some of them might have been reviewed on an appeal from the judgment.

[6] The California decisions also hold that an appeal from the judgment and from an order denying new trial are independent remedies and that upon appeal from the. order all matters before the court on the motion can be reviewed. Hayne, § 2; Houser, etc., Mfg. Co. v. Hargrove 129 Cal. 90, 61 Pac. 660; Riverside Water Co. v. Gage, 108 Cal. 240, 41 Pac. 299; Brison v. Brison, 90 Gal. 323, 27 Pac. 186. But as broadly-stated as that the California decisions conflict. with Carlberg v. Fields, supra, and Irwin v. Lattin, supra. To keep this decision in harmony with those, we must modify the California rule to the extent of holding that, where two methods of reviewing the same question aré open, the partial pursuit of one and its abandonment or determination constitute- a 'bar to the pursuit of the other; but the mere failure to invoke the one is not a bar to the invoking of the other.

[7] We therefore hold in the present case that inasmuch as the motion for new trial had been submitted to the trial court before the right to appeal from the judgment had expired, and inasmuch as the appeal from the judgment was abortive and the situation is the same as though no appeal had been taken from the judgment, and' inasmuch as this appeal was taken within the 60 days prescribed by statute, therefore on -this appeal all questions may be reviewed that are ordinarily the subject of review by the motion for new trial.

We come now to the merits of the appeal. This action was begun on February io, 1915, to- recover from defendant, as a stockholder in the Blue Bell Medicine Company, the sum of $19,791.95 and interest; that sum being the amount of a judgment obtained by plaintiff against the company on October 14, 1914. See Keyes v. Blue Bell Medicine Co., 34 S. D. 297, 148 N. W. 505. This action was brought undeir the provisions of section 441, C. C. (section 8779, Rev. Code 1919), a portion of which is as follows:

/‘Each stockholder of a corporation- is individually and personally liable for the debts of' the corporation to the extent of the amount that is unpaid upon the stock held by him. * * *”

The trial court found that defendant .was at all times the owner of 678^4 shares of stock in the company of the par value of $100 per share; that he had only paid therefor the sum of $2,500, so that his liability on said shares was $65,325; but that he was entitled to ia set-off for claims’ held by him against the company to the amount of $56,717.13. Judgment was therefore rendered against defendant for the sum’ of $8,707.87.

[8] Appellant first contends that plaintiff did not rely upon the apparent amount of outstanding- capital stock of the company when he contracted with it, and therefore that lie cannot recover under the above' section of statute. The principles and authorities relied upon are grouped in section 3595, vol. 5, Fletcher’s Cyc. Corp. If we should concede the law to be as claimed, 3et it would avail appellant nothing. Respondent testified flatE that he did not rety upon the amount of capital stock of the corporation, nor upon the amount of stock that had been issued to the parties to whom- it was issued. -He testified that it was the guaranty that 'induced him to enter into the deal,' and that he did rely upon the financial responsibility of -the company. -He also testified that .he -believed the. stock-, holder's, had-bought the -stock and paid for it.. We think that this, testimony does not rebut the presumption or inference that respondent relied upon the supposed fact that the capital stock issued had been paid for as the law of South Dakota requires. If he', relied upon- the financial responsibility .of the company and upon .the guaranty,, he relied, so far as the evidence shows,, upon the assumption .that value had been given for the $300,-000 of stock issued.; The trial court found that only $10,000 in value liad been paid-- for such stock issued.

[9]' Appellant next, contends that, at the time the corporation incurred the . obligation. with respondent, ' he was the owner of only $50,000 of the capital stock of the. corporation, and, as he had already paid out more than that sum for the corporation, as evidenced by the. set-off allowed in the findings, no judgment should have ..been rendered against him- in this action. The evidence tended to shio-w that appellant originally was- the- owner of 750 shares of stock of the company"; that he. surrendered 250 shares-, and the other shareholders surrendered shares in like proportion for the purpose of issuing shares of preferred stock;, that- only 287 shares of. preferred stock were issued,' -and thereafter and on August 10, 1909, the unissued 713 shares of preferred treasury stock were canceled and reissued as common stock, of which, the appellant received 178J4 shares. The claim- of respondent upon which, the judgment against the company was rendered arose by- reason of - his exchange of land for shares of the guaranteed preferred stock issued to him- on November 25, 1908, and a formal guaranty by the company Issued- to him November 28, 1908. If we should hold that appellant was the owner of only 500 shares, or $50,000, of the stock of the company ■ at the time of the-guaranty, and should again concede the law to- be as contended for by appellant, yet under the facts shown in the record respondent would have been entitled to a larger judgment than 'Ire obtained, because 'indebtedness of the company to the extent -of more than $30,000 taken up by the appellant, and for which ■he was allowed a set-off, was incurred after - appellant had again become the- owner of- the 178% shares. Upon the theory of the trial .court that appellant was in fact the equitable owner-of said 178^ shares during the period after the surrender of 250 shares to the company and before the reissue to appellant of' said 178y[ shares, there was but one fund from which creditors of the company could enforce claims against appellant. If appellant’s contention is correct that he ceased to- be the owner of 250 shares at the time of surrender and did not- again become the owner of the 178% shares until August 10, 1909, then there were two funds — the one arising prior to August 10, 1909, and the one arising after that date. If appellant’s theory is correct, 'yet, upon recognized principles of marshaling assets, respondent could have required his claim to 'be paid out: of the former fund before that portion of the set-off amounting to $30,000 was allowed. If that had been done, a judgment, as declared by the conclusions of law, would have been .rendered against appellant for $18,159.11. Appellant therefore was not prejudiced by the .ruling complained- of. No rule of law is more firmly established than that a right judgment should not be reversed because the trial court based its judgment upon an erroneous- conclusion. In re Yankton-Clay County Drainage Ditch, 38 S. D. 168, 160 N. W. 732; Davis v. Jacobson, 13 N. D. 430, 101 N. W. 314.

[10] It is next contended that the contract of guaranty-was ultra vires as a matter of law and not authorized as a matter of fact. The answer to this' is that the judgment rendered pursuant to the mandate of this court in Keyes v. Blue Bell Medicine Co., supra, was an adjudication of those- questions.

[11] Appellant next contends that the action of the board of directors taken in good faith accepting the business of the Hardy Drug Company at the value of $300,000 is conclusive as to that value. 'Section 423, C. C., as amended by chapter 104, Laws 1907 (section- 8775 Rev. Code 1919). The trial-' court specifically found that such action of the board of' directors was not taken in good faith, and there was ample evidence to sustain that finding.

Other minor assignments of error we do not deem • worthy of special consideration. No error prejudicial to appellant appears from the record.

The order denying a new trial is affirmed.