15 S.D. 480 | S.D. | 1902
This is an action to enjoin the treasurer of Beadle county from executing a tax deed on certain tax certificates issued by said county, and for a judgment canceling the same. The case was tried to the court without a jury, and the findings and judgment were in favor of the defendants, and from this judgment and the order denying a new trial the plaintiff has appealed. The motion for a new trial was made on various grounds, among which were insufficiency of the evidence to justify the findings of the court, errors of law occurring at the trial and excepted to by the plaintiff, and that such findings were against law. It is contended on the part of the respondents that the question of the insufficiency of the evidence to justify the findings, and errors of law, cannot be reviewed in this court, for the reason that it does not affirmatively appear from the abstract that specifications of the particulars in which the evidence is claimed to be insufficient to justify the findings and the particular errors of law relied on are annexed to or made a part of the bill of exceptions. This contention, however, is no¡ available to the respondents, for the reason that they have filed no additional abstract denying that such specifications were annexed to the bill of exceptions. This court will therefore presume, in the absence of an additional "abstract on the part of the respondents, that such specifications were annexed to the original bill of exceptions.
One of the essential requisites of a judgment is that it be based upon either the findings of the court, a special verdict upon all the issues presented by the pleadings, or by a general verdict finding upon all the issues. 8 Enc. Pl. & Prac. 931-944. In Bartow v. Insurance Co., 10 S. D. 132, 72 N. W. 86, and Humpfner v. D. M. Osborne & Co., 2 S. D. 310, 50 N. W. 88, this court held that special findings of the jury which did not find upon all the issues were insufficent to support the judgment. In the more recent case of Wilson v. Insurance Co., 89 N. W. 649, this rule was adhered to. See, also, McKenna v. Whittaker, 9 S. D. 442, 69 N. W. 587. It is certainly quite as important that the court, when trying a case without a jury, should find upon all the issues as that the jury should do so in finding a general or special verdict. It is quite clear from the record in this case that in many, if not all, of the issues upon which no findings were made there was evidence upon which the court could have found the facts, and, had they been so found,
The judgment of the ciruit court, and order denying a new trial, are reversed, and a new trial ordered.