11 S.D. 491 | S.D. | 1899
When this appeal was formerly considered, the judgment of the circuit court was reve/sed, and a new trial ordered. The issues involved are fully stated in our former opinion. Wylly v. Grigsby, 10 S, D. 13, 70 N. W. 1049. A rehearing having been granted, it is now contended that the objection to the introduction of any evidence should have been overruled, because it did not specify in what respects the complaint failed to state a cause of action. This is untenable. As the objection that a complaint does not state facts sufficient to constitute a cause of action may be urged for the first time in this court, the form of the objection in the court below cannot be material. The defects in this complaint pointed out in our former opinion were not cured by evidence received upon the trial. Carpenter, who held the record title to the mortgaged premises when this action was commenced, acquired such title before the satisfaction was recorded. Therefore he was not an innocent purchaser, and, if the satisfaction was recorded without authority, there was nothing to prevent plaintiff from enforcing the lien of her mortgage, notwithstanding the Unauthorized satisfaction; and if the complaint fails to state a cause of action, there is nothing to support the judgment.
We still adhere to the view that, if the allegations, of the complaint are true, plaintiff has suffered no substantial injury, as she can foreclose her mortgage as if no satisfaction had been recorded; but upon more mature reflection, we think the
In the absence of evidence to the contrary, the law presumes that the amount appearing to be due upon a promissory note is its value. Cosand v. Bunker, 2 S. D. 294, 50 N. W. 84. Until the value of this note is shown to have beem impaired by the unauthorized act of defendant, it cannot be asserted that such act has caused any appreciable detriment, and plaintiff is not entitled to recover more than nominal damages. The judgment of the circuit court is reversed, and a new trial ordered.
