9 S.D. 36 | S.D. | 1896
This action, to cancel a lis pendens, a certificate of sale on execution, and perpetually enjoin the issuance to appellant Palmer of a sheriff’s deed to the property described in the complaint, was tried to the circuit court without a jury, and resulted in a judgment for plaintiff, and the defendant appeals.
Respondent’s motion to strike from the abstract, and disregard, appellant’s bill of exceptions, is based upon a question discussed in Peart v. Railway Co. (just decided by this court) 8 S. D. 431, 67 N. W. 837, on appeal from the clerk’s taxation of costs. Applying to this case, in the absence of an additional abstract, the reasoning of that opinion and the rule thereby announced, the motion is denied.
Under Sec. 5066 of the Compiled Laws, as amended by Chap. 72, Laws 1893, it is the duty of a court before whom a question of fact has been tried to file its written decision within 30 days after the submission of the cause, but a failure in that particular, in the absence of injury to the unsuccessful litigant, is no ground for the reversal of a judgment signed and entered immediately after the filing of such decision. Prom the evidence introduced in support of the complaint, the court, in ef
Respondent’s deed, executed and delivered August 1, 1891, was placed of record, as previously stated, at 2 o’clock in the afternoon of September 2, 1891; and, while the return of the officer levying the attachment upon that day does not state the hour of seizure, there was evidence offered upon the part of appellant tending to show that the levy was in fact made in the forenoon of September 2d, and that appellant thereupon entered upon the premises, which were vacant and unoccupied, and has from that tíme to this remained in actual possession thereof. As appellant was in no event entitled to the actual possession of the premises under the attachment and the court found that respondent was in possession at the time of the levy, under his deed, that issue, and all evidence offered upon the question of possession, was wholly immaterial, and a finding thereon might well have heen omitted. As the levy of an attachment upon real property in this state neither gives to an officer nor an attaching creditor any possessory right, appellant was amere trespasser, and obtained no advantage by his unauthorized acts of oceupancy. Wade, Attachm. 251.
Eickelberg having no interest or estate in the property, and respondent being the absolute owner thereof, when the attachment was levied no advantage was gained,' as between the parties to this suit, by the recording of the deed, and it is wholly immaterial whether the property was attached before or after the deed went to record. While the issue as to priority was wholly immaterial and no finding of fact, thereon was necessary, we shall assume for the purposes of this case that