3 S.D. 324 | S.D. | 1892
This action was brought by respondents to recover possession of certain property claimed to be personal, and withheld by the appellants. They recovered judgment on trial by the court below, and the defendants have appealed. The respondents move to dismiss the appeal because no bill of exceptions was settled in the case. This would not be ground for dismissal, but does, we think, confine the review in this court to questions appearing upon the judgment roll proper. The printed abstract recites that the parties agreed upon the facts embodied therein in a stipulation, and submitted the case to the court for trial and decision upon such stipulation, and then purports to set out the facts so stipulated. The appellants insist that no bill of exceptions was necessary, for the parties have formally agreed to the facts; no finding of the trial judge could change them; that a bill, if settled, would exhibit the very facts recited in the affidavit, and no other. Such result would very likely follow, if it were once properly established in this court that the parties did make a stipulation below, agreeing upon the facts' stated. But suppose either the making of the stipulation, or that its contents were correctly set out, was denied, how could either be made to appear in
In Raymond v. Spicer, 6 Dak. 45, 50 N. W. Rep. 399, it was held by the territorial supreme court that it was not competent for the parties after trial to stipulate what should be considered a bill of exceptions or statement, and that such stipulation would not be accepted as record by the appellate court, unless properly signed by the judge. As this was but a memorandum opinion, we notice further that in Leonard v. Warriner, 20 Wis. 41, the court said: “There is no bill of exceptions in this case. There is what the attorneys for the respective parties have stipulated should be a bill of exceptions, and of the same force and effect as if settled and signed by the circuit judge; but it is not signed by the judge. We cannot permit the stipulation of the attorneys to take the place of or do away with the necessity of such signing by the judge. They may stipulate into the record, if this was permitted, rulings or instructions that were never made or given, and which would make the circuit judge appear ridiculous.”
The statute carefully provides the method for preparing, proving, and authenticating in the trial court a record for use in the appellate court, but whether by bill of exceptions or statement used in motion for new trial, as in section 5090, or by bill of excep
Respondents, however, claim that, as they had before the expiration of the lease become the owners of these articles by purchasing the same at a foreclosure sale under a chattel mortgage made by the tenant, — which fact was found by the court, — they were not subject to the same rule as the tenant, and were not required to make the removal during the term of the lease, “because there was no privity of contract or obligation existing between them and the defendants; and while Berry (tenant) might have been bound to remove them within a certain time, yet these plaintiffs were not bound to carry out Berry’s obligation respecting the removal of the property from the building.” This claim cannot be maintained. As-purchasers, they only acquired the tenant’s interest in the property, which was ownership, provided it was detached and removed during the term of the lease. Failure to remove during the time the tenant might rightfully enter upon the premises left these trade fixtures the property of the owner of the premises to which they were affixed, not by force of the lease, but by force of the law. We think the trial court was wrong in holding the plaintiffs entitled to recover this property so affixed to the demised premises, and not removed during the continuance of his term, and for such error the judgment is reversed, without examination of other errors assigned.