Stephens v. Faus

| S.D. | Feb 14, 1906

HANEY, J.

This is an action to compel the specific performance of a contract relating to- real propert}''. It is alleged in the complaint that the defendant was the owner of a certain described tract of land in Hughes county; that the plaintiff and defendant entered into a contract whereby the defendant agreed to- convey the land by warrant)^ deed, free from all incumbrances, to the plaintiff, and the-plaintiff agreed tO' pay therefor the sum of $500; that the defendant,, though requested, has failed and refused to conve)'; and that the plaintiff is still ready and willing to pa3r for the property. The answer admits that the defendant owns the land, and that he has not delivered or offered to deliver a deed, and' denies all the other al-Igations of the complaint. The decision of the learned circuit court was in favor of the plaintiff, defendant’s motion for a new trial was denied, and this appeal taken.

Appellant’s assignments of error are substantially as follows: “(i) The court erred in overruling defendant’s objections to the introduction of Exhibit B. (2) In overruling defendant’s objections to the introduction in evidence of the following exhibits: Exhibit C, Exhibits D and E, Exhibit F, Exhibit G, Exhibit H, Exhibit I, Exhibit J, Exhibit K, Exhibit E, and Exhibit M. (3) In overruling defendant’s objection to the following question, to-wit: ‘State whether or not you found from the records that the defendant owns any land in Hughes count}'.’ (4) In overruling the objection of-defendant to the following question, to-wit: ‘State whether' or not that is the same tract of land that you described in this deed that you sent Mr. Faus, defendant.’ (5) In rendering his decision in favor of the plaintiff and against the defendant. (6) In refusing to sign the findings of.fact presented by the defendant, instead of those presented by the plaintiff and signed by the court. (7) In refusing to sign the conclusions of law presented to him for signature by the defendant. (8) In deciding that the evidence warranted decision in favor of plaintiff, aixd in deciding that the minds of the parties met so as to form a contract. (9) That the decisions of the court is not sustained by the evidence, first, because there is not sufficient evidence to show that the minds of the parties met so as to form a contract; second, if there was a contract, the same was abrogated by the plaintiff requiring the signature of defendant’s wife to the deed. (10) The court erred in signing the findings of fact and conclusions of law presented by and in favor of the plaintiff, (xij The court erred in overruling plaintiff’s [defendant's] motion for a new trial.”

The first four assignments might be deemed abandoned because not discussed in appellant’s brief. However, they present no reversible error. The plaintiff resided in this state; the defendant in Florida. The evidence of the alleged contract consisted of letters and telegrams which passed between the parties. The exhibits mentioned were either letters, copies of letters, or copies of telegrams relating to such contract. Proper foundation was laid for the introduction of copies, and each of the exhibits was relevant.' The statement that the plaintiff found from the records that the defendant owns land in Hughes county was harmless, if not admissible, because the defendant admitted in his answer that he owned the land described in the complaint. The deed referred to in the fourth assignment was in the defendant’s possession. There was notice to produce and oral evidence of its contents was entirely proper.

The fifth, sixth, and seventh assignments specify no particular errors occurring at the trial, and present nothing for review. The eight assignment is unavailing because it attempts to question the sufficiency of the evidence without specifying wherein it is insufficient.

The ninth assignment, though imperfectly stated, may be regarded as specifying the particulars in which the evidence is alleged to be insufficient to. justify the decision, a question which cad be considered only on an appeal which presents for review an order denying a motion for a new trial, and such an order made after judgment, as in this case, can be reviewed only on an appeal from such order. Pierce v. Manning, 2 S. D. 517, 51 N.W. 332" court="S.D." date_filed="1892-02-24" href="https://app.midpage.ai/document/pierce-v-manning-6683156?utm_source=webapp" opinion_id="6683156">51 N. W. 332; Hawkins v. Hubbard, 2 S. D. 631, 51 N.W. 774" court="S.D." date_filed="1892-03-16" href="https://app.midpage.ai/document/hawkins-v-hubbard-6683184?utm_source=webapp" opinion_id="6683184">51 N. W. 774; Norwegian Plow Co. v. Bellon, 4 S. D. 384, 57 N.W. 17" court="S.D." date_filed="1893-12-09" href="https://app.midpage.ai/document/norwegian-plow-co-v-bellon-6683575?utm_source=webapp" opinion_id="6683575">57 N. W. 17; Evenson v. Webster, 3 S. D. 382, 53 N.W. 747" court="S.D." date_filed="1892-12-08" href="https://app.midpage.ai/document/evenson-v-webster-6683330?utm_source=webapp" opinion_id="6683330">53 N. W. 747; Gade v. Collins, 8 S. D. 322, 66 N.W. 466" court="S.D." date_filed="1896-03-04" href="https://app.midpage.ai/document/gade-v-collins-6684458?utm_source=webapp" opinion_id="6684458">66 N. W. 466; Sinkling v. Railway Co.., 10 S. D. 560, 74 N.W. 1029" court="S.D." date_filed="1898-04-05" href="https://app.midpage.ai/document/sinkling-v-illinois-central-railway-co-6685090?utm_source=webapp" opinion_id="6685090">74 N. W. 1029; Machine Co. v. Skau, 10 S. D. 636, 75 N.W. 199" court="S.D." date_filed="1898-05-17" href="https://app.midpage.ai/document/minneapolis-threshing-machine-co-v-skau-6685127?utm_source=webapp" opinion_id="6685127">75 N. W. 199; Bourne v. Johnson, 10 S. D. 36, 71 N.W. 140" court="S.D." date_filed="1897-05-12" href="https://app.midpage.ai/document/kirby-v-circuit-court-6684882?utm_source=webapp" opinion_id="6684882">71 N. W. 140; Parrish v. Mahany, 10 S. D. 276, 73 N.W. 97" court="S.D." date_filed="1897-11-19" href="https://app.midpage.ai/document/parrish-v-mahany-6684969?utm_source=webapp" opinion_id="6684969">73 N. W. 97; Mettel v. Gales, 12 S. D. 632, 82 N.W. 181" court="S.D." date_filed="1900-03-02" href="https://app.midpage.ai/document/mettel-v-gales-6685608?utm_source=webapp" opinion_id="6685608">82 N. W. 181; Hughes v. Stearns, 13 S. D. 628, 84 N.W. 196" court="S.D." date_filed="1900-11-21" href="https://app.midpage.ai/document/hale-v-gullick-6685823?utm_source=webapp" opinion_id="6685823">84 N. W. 196. Under the law as it was prior to 1901 no appeal would lie from a judgment or order until after it had been “entered” as a permanent record of the court below. Stare v. Lamm, 9 S. D. 418, 69 N.W. 592" court="S.D." date_filed="1896-12-23" href="https://app.midpage.ai/document/state-ex-rel-morgan-v-lamm-6684756?utm_source=webapp" opinion_id="6684756">69 N. W. 592; Coburn v. Board, 10 S. D. 552, 74 N.W. 1026" court="S.D." date_filed="1898-04-05" href="https://app.midpage.ai/document/coburn-v-board-of-comrs-6685086?utm_source=webapp" opinion_id="6685086">74 N. W. 1026; Martin v. Smith, 11 S. D. 437, 78 N.W. 1001" court="S.D." date_filed="1899-04-04" href="https://app.midpage.ai/document/martin-v-smith-6685309?utm_source=webapp" opinion_id="6685309">78 N. W. 1001; Chamberlain v. Hedger, 10 S. D. 290, 73 N.W. 75" court="S.D." date_filed="1897-11-19" href="https://app.midpage.ai/document/chamberlain-v-hedger-6684973?utm_source=webapp" opinion_id="6684973">73 N. W. 75; Sinkling v. Railway Co., supra; Machine Co. v. Skau, supra; Smith v. Hawley, 11 S. D. 399, 78 N.W. 355" court="S.D." date_filed="1899-02-01" href="https://app.midpage.ai/document/smith-v-hawley-6685293?utm_source=webapp" opinion_id="6685293">78 N. W. 355; Bank v. Oliver, 11 S. D. 444, 78 N.W. 1002" court="S.D." date_filed="1899-04-04" href="https://app.midpage.ai/document/carr-v-gilbert-6685316?utm_source=webapp" opinion_id="6685316">78 N. W. 1002; Neeley v. Roberts, 11 S. D. 634, 80 N.W. 130" court="S.D." date_filed="1899-09-02" href="https://app.midpage.ai/document/dewey-v-feiler-6685385?utm_source=webapp" opinion_id="6685385">80 N. W. 130; Hughes v. Stearns, supra; Mettel v. Gales, supra; Dyea Electric Light Co. v. Easton, 14 S. D. 520, 86 N.W. 23" court="S.D." date_filed="1901-05-04" href="https://app.midpage.ai/document/dyea-electric-light-co-v-easton-6685980?utm_source=webapp" opinion_id="6685980">86 N. W. 23. The sections of the Compiled Laws upon which these decisions were based were incorporated into the Revised Code of Civil Procedure of 1903 without-change. Comp. Raws 1887, §§ 5215, 5236; Rev. Code Civ. Proc. §§ 441, 462. The act of 1901, which provided that a judgment shall be complete and effective when rendered by the court, attested by the clerk and filed in his office, and that an order shall become complete and effective as such when made in writing, signed by the court or judge, attested by the clerk, and filed in his office, was also carried into the Revision of 1903. Raws 1901, pp. 267, 268, c. 166, §§ 1, 2; Rev. Code Civ. Proc. §§ 316, 317. By the same act it was made the duty of the clerk, “immediately after the filing •of the judgment or order, to attest and record the same in the judgment book.” Raws 1901, p. 268, c. 166, § 3; Rev. Code Civ. Proc. •§ 318. So a signed, attested, and filed order or judgment now may be deemed to be entered, but an order or judgment does not become •complete or effective for any purpose until it has been signed, attested, and filed. It affirmatively appears. from the appellant’s abstract that the order denying his motion for a new trial was not attested when this appeal was taken. No such order then existed. A11 appeal cannot lie from an order which does not exist, and, in the absence of an appeal from a complete and effective order, the sufficiency of the evidence to1 justify the decision cannot be questioned. '

If, as must be assumed, there were no errors at law occurring at the trial, and the evidence was sufficient to justify the decision, the court below neither erred in signing the decision presented by and in favor of the plaintiff, nor in overruling defendant’s motion for a new trial, as alleged in the tenth and eleventh assignments, and it follows that the judgment appealed from must be affirmed.

FURRER, P. J., took no part in this decision.