12 S.D. 618 | S.D. | 1900
This case comes before us on a petition for rehearing. It was decided at a former term of this court, and is reported in 11 S. D. 566; 79 N. W. 840. The petition for rehearing is based upon the ground that this court assumed in its opinion facts which are not in the record, in that it says; “That the statutory notice to quit was given, and that respond ents remained in possession after the execution and delivery of the deed to appellant based upon regular mortgage foreclosure proceedings and under power of sale, appears upon the face of the records. The respondents contend that this statement is incorrect, for the reason that no notice to quit was offered or received in evidence on the trial of this case in the circuit court, and that the bill of exceptions does not show any such offer on the part of plaintiff and appellant. It is true, as contended by counsel, that no notice to quit, as required by Section 6073 Comp. Laws, was offered or received in evidence, but, in our view of the case, it was not necessary for the plaintiff and appellant to make such proof on the trial in the circuit court, for the reason that the notice to quit served in this case was made a part of plaintiff’s complaint in the justice’s court, and properly constituted a part of the records of the case. We are of the opinion that under the provisions of Section 6074 the
It is further claimed, however, on the part of the respondents, that there was no sufficient proof that the notice to quit was served upon the defendants in the. action. But we find upon the notice an affidavit of proof of service, made by Charles B. Kennedy, showing personal service of the notice upon both of the defendants. No motion appears to have been made, either in the justice’s court or in the circuit court, to quash, vacate, or set aside this notice or the return thereon, and the defendants appeared generally in the action. It is too late, therefore, to raise the question in this court as to the sufficiency