14 S.D. 352 | S.D. | 1901
This case comes before us on reargument, a petition for rehearing having been granted on application of the appellant. The former decision is reported in 11 S. D. 124, 75 N. W. 900. Plaintiff claims in his petition for rehearing that the court failed to pass upon his first assignment of error, viz: that the lower court erred in reserving its decision upon the respondents’ objection to the introduction in evidence of proof that plaintiff’s claim was presented to the executors of the Miller estate. It will be sufficient, in addition to the statement of facts contained in the former opinion, to say that the plaintiff and appellant in his complaint prayed for a deficiency judgment against the estate of Miller, deceased, and for that purpose, upon the trial of the case, introduced evidence tending to show that he had presented his claim for the amount due him upon his mortgage as required by statute. In appellant’s brief upon the former argument, he presented and argued this assignment quite fully, but this court took the view at that time that the alleged error, if error there was, constituted an irregularity that should have been presented to the court below for review upon affidavits. But, upon a re-examination of this question, we are of the opinion that this court, in taking that view, was in error, and that the alleged error constituted an error in law, and was properly presented to the court below on the motion for a new trial. The appellant is therefore entitled to a decision upon that question by this court.
It appears from the record that upon the trial of this case in the court below the appellant read in evidence, without objection, the order of the county court in the estate of James K. P. Miller,