139 N.W. 338 | S.D. | 1913
This is an appeal by the defendant from a judgment in favor of the plaintiff. The action was one in replevin to recover the possession of three two year old heifers which the plaintiff claimed to own and which he alleged were wrongfully detained by the defendant at the time of the commencement of the action. The case was tried by the court with a jury and a verdict returned in favor of the plaintiff. At the close of plaintiff’s evidence the defendant moved for the direction of a verdict in his favor, which motion was denied by the court, and to which ruling the defendant excepted. This motion was renewed at the ■close of all the evidence, and the ruling of the court in denying the former motion for the direction of a verdict is assigned as error.
The judgment appealed from was rendered and entered January 5, 1912, and the order denying defendant’s motion for a new trial was made - April 5, 1912, and filed the next day, April 6th. The appeal was taken from the judgment alone. The order denying .the motion for a new trial having been made after the entry of judgment, and not having been appealed from, 'the decision of the court below upon the question of the sufficiency of the evidence to justify the verdict will not be considered ’by this court, as an appeal f-rom the judgment alone does not bring up for review such an order when made after judgment. Gade v. Collins, 8 S. D. 322, 66 N. W. 466; Bourne v. Johnson, 10 S. D. 36, 71 N. W. 140; Parris v. Mahany, 10 S. D. 276, 73 N. W. 97, 66 Am. St. Rep. 715; Stephens v. Faus, 20 S. D. 367, 106 N. W. 56; Aultman, Miller Co. v. Becker, 10 S. D. 58, 71 N. W. 753; Barcus v. Prokop, 135 N. W. 756; Hawkins v. Hubbard, 2 S. D. 631, 51 N. W. 774; Manufacturing Co. v. Galloway, 5 S. D. 205, 58 N. W. 565.
The judgment appealed from is reversed.