14 S.D. 373 | S.D. | 1901
The plaintiff claiming to be the owner of a mining lode location designated as the “Phoenix Rode,” located within the boundaries of the city of Deadwood, brought this action to restrain the defendants from interfering with, or trespassing upon, the same, and for damages in the sum of $5,000, sustained in consequence of trespasses upon the same by the said city of Deadwood, and for such other and further relief as might be just in the premises. The defendant Whittaker answered for himself and the other defendants, denying, in effect, plaintiff’s title, and claiming the premises under and by virtue of a conveyance made to him by the probate judge of Rawrence county under the townsite entry of the city of Deadwood. The case was tried to the court without a jury, and findings and judgment were rendered in favor of the defendants, and the plaintiff appeals.
The plaintiff bases his claim for a reversal mainly upon the ground that the findings of the court were not supported by the evidence and were contrary to the same. Respondent makes the preliminary objection that this court cannot review the evidence for the reason that the motion for a new trial was made upon the minutes of the court, and that the notice of intention to move for a new trial contained no specification of the particulars in which the evidence is alleged to be insufficient, and that it was therefore the duty of the court below to deny the motion, and that this court, without such a specification of the particulars in which the evidence is claimed to be insufficient as provided by subdivision 4, § 5090, Comp. Raws, cannot review the evidence. The material parts of the notice of intention to move for a new trial are as follows: “You will please take notice that the above named plaintiff intends to move the above entitled court for an order setting aside the decision and judgment of the court heretofore entered in this action, upon the grounds following:
The only questions, therefore, presented, are whether there were any errors of law occurring at the trial in the exclusion or admission
The court in its findings of fact set out at some length various proceedings of the appellant in his attempt to locate the mining claim in controversy, but finds that the appellant had no valid mining