Allen v. Hendrickson

141 N.W. 86, 31 S.D. 376, 1913 S.D. LEXIS 131

• Court: South Dakota Supreme Court
• Decided: April 23, 1913
• Status: Published

Opinion

POLLEY, J.

This action was commenced some time prior to the 20th day of March, 1911. The plaintiff was a nonresident, and on the said 20th day of March, 1911, the court made and entered an order dismissing the action, unless within 30 days thereafter the plaintiff furnish security for costs, as required by section 438, C. C. Pr. On the same day the appellant, Sioux Falls Savings Bank, became surety on a bond for such costs, and thereafter a trial was had, which resulted in a verdict in favor of defendant, and judgment thereon, dismissing the action and for costs against the plaintiff in 'the sum of $87.15, was entered on the 13th day of November, 1911.

Thereafter, pursuant to the provisions of section 438, C. C. Pr., defendant made a motion to have judgment for the amount of defendant’s costs entered against the appellant as surety on the said bond for costs. This motion was based upon the affidavit of one of defendant’s counsel and all the records and files in the action.

At the hearing on this motion the appellant, Sioux Falls Savings Bank, appeared by its counsel and objected to the hearing of defendant’s motion to enter judgment against it for the reasons:

“(1) The Sioux Falls Savings Bank is a corporation, duly organized and incorporated according to law for the sole purpose of carrying on a banking business, as provided by its charter, and possesses none of the attributes nor powers of surety companies; neither* has it complied with the laws of South Dakota governing surety companies; therefore the act of H. R. Dennis, its president, wherein he attempts to bind said corporation as surety for costs in ■the above entitled action, exceeds the authority conferred on him, and exceeds the power conferred on said corporation by its charter, and is therefore ultra vires and void.

“(2) That on the 8th day of March, 1912, in another action then pending between the parties to this actionj with the Sioux Falls Savings Bank appearing as surety, this court issued its order requiring plaintiff to show cause why said action should not be dismissed, for the reason that 'plaintiff has failed to give and fiic proper and sufficient security for costs’; that in his affidavit in support of said order G. R. Krause, one of the attorneys for defendant herein, admitted that the Sioux Falls Savings Bank was insufficient surety, which affidavit and order to show cause are now. on file in this court, and are by reference made a part hereof. That I am advised that thereafter, at the beginning of the April, 1912, term of the circuit court in and for Moody county, South Dakota, this court did dismiss the said action for the reason set forth in said affidavit and order, to wit, that the said Sioux Falls Savings Bank was insufficient surety for costs.”

No counter affidavit nor other evidence was presented in support of said objections, and the court thereupon entered judgment against appellant for the said costs and interest thereon, amount-. ing to $90.75. _ The entry of this judgment is assigned as error, and this appeal is prosecuted therefrom.

[1] The only files in the case transmitted to this court with the notice and undertaking on appeal were the affidavit and notice of motion for entry of judgment for-costs against the. surety, the objections of the surety thereto, as above stated, and the judgment entered against the surety. These papers constituted the entire record on appeal. There is nothing in the record on which this court can pass upon the sufficiency of the second objection above set forth.

[2] The second proposition argued in appellant’s brief, to wit, that judgment -could not be entered against the surety until the time for taking an appeal from the judgment against the' plaintiff for costs had passed, cannot he considered by this court, for the reason that it was in no wise presented .to or passed upon by the trial court, and “no ruling of a trial court should ever be reversed upon grounds not called to its attention when the ruling was made.” Woods et al. v. Stacy, 28 S. D. 214, 132 N. W. 1007; Gaines v. White, 2 S. D. 410, 50 N. W. 901; Dowdle v. Cornue et al., 9 S. D. 126, 68 N. W. 194; Roftus v. Agrant, 18 S. D. 55, 99 N. W. 90.

[3] This court cannot, nor could the trial court, take judicial notice of the facts set forth in the said first objection, and, so far as the record before us discloses, the trial court did not err in rendering a judgment for costs against the -surety.

The judgment of the trial court is affirmed.