6 S.D. 58 | S.D. | 1894
This case comes before us on a petition for a rehearing. The opinion of this court is reported in 4 S. D. 226; 55 N. W. 929. This was the second appeal in this case, the first opinion being reported in 2 S. D. 106; 48 N. W. 841. As appears more fully from the statement of the case in the second opinion, the plaintiff, its judgment in the-first appeal having been reversed, moved the circuit court to submit certain issues to a jury, which it claimed had not been passed upon by the referee to whom the case was originally referred, and to set the. case down for trial. The defendants, in whose favor the first appeal had been decided, made a counter motion for a judgment dismissing the action. Both motions were heard at the same time, and plaintiff’s motion was denied, the motion of the defendants granted, and a judgment dismissing the action rendered. From this judgment plaintiff appealed, and desig
The appeal in this case was from the judgment dismissing the action, and, though the review of the order denying plaintiff’s motion to place the case upon the calendar for trial was asked for, a bill of exceptions or statement of the case was necessary in order to enable the court to review the evidence, even so far as it affects the order. The evidence must be contained in a bill of exceptions or statement of the case properly settled by the judge.
There is in the record — not in the abstract — a document which seems to be the stenographer’s notes of the evidence; and this is returned here by the clerk of the circuit court, and-stipulated by counsel as having been used in the hearing in the court below. It does not purport to be a bill of exceptions or statement of the case, and is not authenticated in any manner. The learned counsel, in abstracting it for his so-called “Aditional Abstract, ” seems to assume that it is properly a part of the record in this case. The counsel evidently had in view section 5217, which provides that when an appeal is taken from an order the clerk “shall transmit the order appealed from and the original papers used by each party on the application for the order appealed from,” when he took this appeal. Where the motion
The counsel for the defendants contend that as it appears from the abstract that counsel for the plaintiff moved for and obtained a judgment in favor of the plaintiff upon the report of the referee, without making any objection to the report, or moving the court to make or direct the referee to make other or additional findings, plaintiff has waived its right to other findings, and is now “estopped from claiming that there was any evidence on which it was entitled to additional findings, ” and cites Campbell v. Phillips, 28 Kan. 753. While this proposition is perhaps a little too strongly stated, such a proceeding would raise a strong presumption against the plaintiff’s claim, as now made. But, without pursuing this discussion