27 S.D. 271 | S.D. | 1911
On January 7, 1907, Edward V. Miles, a resident of Jerauld county, died intestate. Eeon S. Miles, a son, inherited -one-fifth -of the estate. The part of the estate involved in this litigation consisted of real property in Jerauld county. On January 22d, 15 days after his father’s death, Eeon S. Miles conveyed his undivided interest in the estate to the defendant E. E-Hunter, a brother-in-law, and received therefor a note executed by Blunter, by which Hunter agreed to pay a sum of money without interest, “equaling the value of -one-fifth o-f the estate of Edward
Respondent contends there was no error in overruling appellant’s motion for a new trial for errors occurring at the trial, for the reason that the notice of intention was not served within the time required by the practice act. The motions for new trial on the ground of errors at the trial, and on the ground of newly discovered evidence, were made at different dates. Respondent did not appear on the hearing of the former motion. But at a later date, and before the ruling of the trial court, respondent learned
The record discloses that the motion on the ground of newly discovered evidence was made without any notice whatever to re
The question of error in the decree is therefore before us on the record. There was neither .'pleading nor evidence before the trial court to sustain that portion of the decree which provides: “That in the event there be a deficiency after paying the amount so realized from such execution sale with costs, that this plaintiff shall have judgment against said defendant, E. E. Hunter, for such deficiency." There was neither allegation nor proof that defendant had sold or disposed of any of the property held by him in trust for creditors of Miles. Oppenheimer v. Collins, 115 Wis. 283, 91 N. W. 690, 60 L. R. A. 406; Gibson v. White, 3 Munf. (Va.) 94. It is undoubtedly true, and may be conceded, that, if the complaint had alleged a sale or other disposition of the property, placing it beyond the reach of plaintiff’s judgment, and the evidence had sustained the allegation, respondent might have been held liable to appellant for the value of such property precisely to the same extent as though it still remained in his hands, but not beyond that. Respondent could in no event be made liable in any amount greater than the value of the property received from Miles. Under this provision .of the decree, appellant might possibly claim to hold respondent bound res judicata for the entire amount of Miles’ judgment indebtedness to Louder, regardless of the value of the tract of property in his hands. This part of the decree is clearly erroneous, and should be eliminated.
The action is remanded to the trial court, with directions to modify the decree as indicated, and, as thus modified, the decree is affirmed.