8 S.D. 277 | S.D. | 1896
This was an action to foreclose a real estate mortgage executed by the defendant Edward M. Galligan to the plaintiff, Dora Scaman. The defendant Edward M. Gal-ligan made no defense, but the defendant Mattie Galligan answered, and judgment was rendered in her favor. A motion for a new trial was made and denied, and from an order denying the same the plaintiff appeals.
Mattie Galligan, in her answer, states, in substance, that in the year 1888 the said Edward M. Galligan commenced an action for divorce against her, in the then district court in and for Clark county, that in July, 1888, said district court granted an order requiring the said Edward to pay this defendant a certain sum as alimony pending the action, and restraining and enjoining the said Edward from transferring or incumbering his property, real or personal, until the further order of the court; that said order was duly served upon the said Edward on or about the 23d of July, 1888; that said money has not been paid, and that the said order has at all times remained in full force and effect, that said divorce action was tried in June, 1891, and a decree of divorce was duly granted to this defendant, Mattie Galligan, together with a judgment against the said Edward for $75 temporary alimony, and $600 permanent alimony, and the costs of the action; that on or about August 15, 1891, an execution was duly issued upon said judgment, under and by virtue of which the property described in plaintiff’s mortgage in this action was sold and bid in by the said Mattie Galligan for the sum of $1, costs and charges of sale; that the said sale was duly confirmed by the court, and certifi-qate of sale duly issued by the sheriff thereon to the said Mattie Galligan. The said Mattie Galligan further alleges that the plaintiff, at the time of the execution of the mortgage in controversy in this action, had actual notice of said order of injunction, and that said mortgage was given by said Edward M. Galligan for the purpose of defrauding the said Mattie Galligan of which the said plaintiff, through her agent, John A. Scaman,
On the trial the defendant Mattie Galligan offered in evidence the injunction order made by the district court on July 23, 1888. This order was objected to on the ground that “the order was subsequently merged in the final decree.” There seems to have been a stipulation made in connection with the offer as follows: “It is stipulated and agreed that the action of Galligan vs. Galligan, in which the injunction order was granted which has been referred to and offered in evidence, was pending at and prior to the granting of said injunction, and pending and undetermined from that time until the decree which has been offered in evidence was rendered, and all of the time.” The order, with this stipulation, was properly admitted. The evident purpose of offering the order was to prove that, at the time the defendant Edward M. Galligan executed the mortgage in suit, he was enjoined from selling or incumbering his property. This the- order, in connection with the stipulation, tended to prove; and it was not material that the injunction order was subsequently merged in.the judgment
The defendant next offered in evidence the judgment, execution, and return of the sheriff in the action of Galligan v. Galligan, which were admitted in evidence against the objection and exceptions of the plaintiff. By this judgment, Mattie Galligan was granted a divorce against the said Edward M. Gal-ligan, and a judgment for $675 for temporary and permanent alimony, and the costs of the action. It was further adjudged and decreed that said judgment, from and after its date, should constitute a lien upon the land of said Edward M. Galligan and all improvements thereon. Whether or not this clause had any effect it is not material to inquire, as the judgment constituted a lien, when docketed, upon the real estate of said Edward M. Galligan. By the sheriff’s return on the execution, it appears that the real estate included in plaintiff’s mortgage was sold under said execution, and bid in by Mattie Galligan for one dollar and costs and charges of sale. It is admitted that this
The defendant Mattie Galligan next offered in evidence a second execution issued upon said judgment, and the return of the sheriff thereon, from which it appeared that the same property was again sold under the second execution, and bid in by the said Mattie Galligan for $420. This sale was also confirmed and a certificate of sale issued to said Mattie Galligan, which at the time of the trial had not been redeemed from sale. This execution and return were also admitted against the objection and exception of the plaintiff. Tiie question therefore presented is: Can a second execution be issued upon the same judgment, and be levied upon the same real property sold under a former execution, and redeemed by the judgment debtor from the former sale? The Code of this state provides for a redemption of property sold by two classes of persons. The first class includes the judgment debtor and his successors. The second class includes creditors having liens by judgments or mortgages subsequent to that on which the property has been sold, and this latter class is termed ‘‘redemptioners.” Comp. Laws, § 5150. The effect of a redemption by the judgment debtor is thus stated in Sec. 5155, Comp. Laws: “If the debtor redeem, the effect of the sale is terminated, and he is restored to his estate.” The section then provides for the manner of canceling
It is further contended by the appellant that the court erred in overruling appellant’s objection to the following question: “Q. Mr. Wright, I will ask you to give, as near as you can, the conversation you had with John A. Seaman at the time you claim to have notified him of the pendency of this injunction of which you have already testified in the fall of 1888. (Objected to by plaintiff’s counsel, as immaterial, on the ground that the relationship of principal and agent has not been shown to exist between these parties, and that John A. Seaman is not a party to this action.)” This objection was properly overruled. The additional abstract submitted by the respondent discloses the fact that there was a large amount of evidence tending to show that John a Seaman was acting as the agent of the plaintiff in loaning her money, and that he actually transacted the business resulting in the giving of the mortgage in suit, as her agent. At the time this evidence was introduced, the case was being tried before a jury, but subsequently, by
The appellant, in rebuttal, introduced in evidence the answer or cross complaint of Mattie Galligan, in the action of Galligan v. Galligan, over the objections of the respondent; and she contends that it appears therefrom that the court had no jurisdiction to grant the defendant in that action a decree of divorce and alimony, for the reason that such cross complaint or answer shows that Mattie Galligan, the defendant in that action, was not a resident oE the then 'territory at the time or prior to the filing of said cross complaint or answer. Waiving the question as to the admissibility of the answer or cross complaint, for the purpose of showing the want of jurisdiction in the court, without introducing in evidence the entire judgment roll, such cross complaint did not establish the fact that the court did not have jurisdiction to render the judgment and decree in that action. Such cross complaint did not affirmatively show that the court had not jurisdiction. It is not enough that the record of a superior court does not affirmatively show that the court has jurisdiction when the judgment is collaterally attacked, but the record must show affirmatively that the court had not jurisdiction; otherwise, the court’s jurisdiction will be presumed. Richards v. Matteson (S. D.), 65 N. W. 428. See, also, Biack, Judgm., §§ 270-279, inclusive, and cases cited. All that appears in said answer or cross complaint bearing upon this question is that certain acts of cruelty complained of are alleged to have been committed at Council Bluffs, in the state of Iowa; that the plaintiff, Edward M. Galligan, deserted her while there; and her prayer for alimony, which is as follows; ‘ ‘And, fifth, that all posts of this action, including