20 S.D. 367 | S.D. | 1906
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.
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 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; Hawkins v. Hubbard, 2 S. D. 631, 51 N. W. 774; Norwegian Plow Co. v. Bellon, 4 S. D. 384, 57 N. W. 17; Evenson v. Webster, 3 S. D. 382, 53 N. W. 747; Gade v. Collins, 8 S. D. 322, 66 N. W. 466; Sinkling v. Railway Co.., 10 S. D. 560, 74 N. W. 1029; Machine Co. v. Skau, 10 S. D. 636, 75 N. W. 199; Bourne v. Johnson, 10 S. D. 36, 71 N. W. 140; Parrish v. Mahany, 10 S. D. 276, 73 N. W. 97; Mettel v. Gales, 12 S. D. 632, 82 N. W. 181; Hughes v. Stearns, 13 S. D. 628, 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; Coburn v. Board, 10 S. D. 552, 74 N. W. 1026; Martin v. Smith, 11 S. D. 437, 78 N. W. 1001; Chamberlain v. Hedger, 10 S. D. 290, 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; Bank v. Oliver, 11 S. D. 444, 78 N. W. 1002; Neeley v. Roberts, 11 S. D. 634, 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. The sections of the Compiled Laws upon which these decisions were based were in
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.