HANEY, P. J.
It is disclosed by the pleadings and evidence that in April, 1891, the' electors of the defendant township attempted to authorize the issuing of bonds for the purpose of constructing artesian wells agreeable to the provisions of chapter 80, p. 196^ Laws 1891; that on January 7, 1893, township bonds to the amount of $5,000 were delivered to Thomas Dring; that nothing has been paid on account of such bonds except annual interest from 1893 to 1898, inclusive, and $490 paid to the plaintiff in February, 1905; [626] that plaintiff is the owner and holder of such bonds; that the money received from the sale of the bonds was used by the defendant for the purpose of constructing artesian wells; and that in another action between the parties to this .suit the bonds were adjudged to be invalid, the ground of their invalidity not appearing. On the trial, both sides having rested, the plaintiff moved for a directed verdict for $7,545, the amount claimed in her complaint. Defendant moved for a directed verdict in its favor upon all the issues. Thereupon the plaintiff applied for and was granted leave to introduce additional testimony touching the amount of cash in the township treasury when the bonds were delivered, as shown by the treasurer’s records, and the court, without any renewal of either motion, directed a verdict in favor of the plaintiff for $3,959.61. No objection was interposed by defendant to the reopening of the case to the additional evidence, or to the direction of the. verdict on the ground of plaintiff’s failure to renew her motion. Judgment having been entered upon the verdict, defendant appealed therefrom and from the order denying its application for a new trial.
Respondent moved to dismiss the appeal on the following grounds; (1) That the attorneys who perfected the same were not authorized to appear for the defendant; (2) that “the files and papers on the purported motion for a new trial were served and filed after the time allowed by law had expired and without any order of court or good cause shown”; (3) that no proper bill of exceptions was ever settled or allowed; (4) that the lower court made no order fixing the amount of an undertaking on appeal; and (5) that no undertaking on appeal has been served or filed. As we understand the record, there is no foundation in fact to 'support the first ground of the motion. The second ground is untenable because an appeal lies from a judgment in absence of any application for a new trial. The same is true of the third ground, a bill of exceptions not being essential to an appeal from a judgment. And the fourth and fifth grounds are without merit because no undertaking was required. Rev. Code Civ. Proc. § 445. So the motion to dismiss cannot be sustained.
• Respondent insists there are no reviewable assignments of error because what purports to be a bill of exceptions, not having been properly settled, was suppressed by the circuit court. Among [627] the papers received from the'circuit clerk is an instrument signed b y the learned circuit judge expressly suppressing the bill of exceptions. Whether or not such instrument was inadvertently signed need not be considered, for the reason that it has not been attested, and is therefore ineffectual for any purpose. Stephen v. Faus, 20 S. D. 367, 106 N. W. 56. The contention that the exceptions were not settled within the time allowed by law, • or order of the trial court is not sustained by the record. Though it certainly was irregular to direct a verdict after receiving additional evidence without the renewal of either party’s motion, such irregularity under the circumstances of this case should be disregarded as not affecting any substantial right. Rev. Code Civ. Proc. § 153. More-ever, “acquiescence in error takes away the right of objecting to it.” Rev. Civ. Code, § 2415. Undoubtedly this slight defect in procedure would have been cured had attention been called to it.
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HANEY, P. J.
It is disclosed by the pleadings and evidence that in April, 1891, the' electors of the defendant township attempted to authorize the issuing of bonds for the purpose of constructing artesian wells agreeable to the provisions of chapter 80, p. 196^ Laws 1891; that on January 7, 1893, township bonds to the amount of $5,000 were delivered to Thomas Dring; that nothing has been paid on account of such bonds except annual interest from 1893 to 1898, inclusive, and $490 paid to the plaintiff in February, 1905; [626] that plaintiff is the owner and holder of such bonds; that the money received from the sale of the bonds was used by the defendant for the purpose of constructing artesian wells; and that in another action between the parties to this .suit the bonds were adjudged to be invalid, the ground of their invalidity not appearing. On the trial, both sides having rested, the plaintiff moved for a directed verdict for $7,545, the amount claimed in her complaint. Defendant moved for a directed verdict in its favor upon all the issues. Thereupon the plaintiff applied for and was granted leave to introduce additional testimony touching the amount of cash in the township treasury when the bonds were delivered, as shown by the treasurer’s records, and the court, without any renewal of either motion, directed a verdict in favor of the plaintiff for $3,959.61. No objection was interposed by defendant to the reopening of the case to the additional evidence, or to the direction of the. verdict on the ground of plaintiff’s failure to renew her motion. Judgment having been entered upon the verdict, defendant appealed therefrom and from the order denying its application for a new trial.
Respondent moved to dismiss the appeal on the following grounds; (1) That the attorneys who perfected the same were not authorized to appear for the defendant; (2) that “the files and papers on the purported motion for a new trial were served and filed after the time allowed by law had expired and without any order of court or good cause shown”; (3) that no proper bill of exceptions was ever settled or allowed; (4) that the lower court made no order fixing the amount of an undertaking on appeal; and (5) that no undertaking on appeal has been served or filed. As we understand the record, there is no foundation in fact to 'support the first ground of the motion. The second ground is untenable because an appeal lies from a judgment in absence of any application for a new trial. The same is true of the third ground, a bill of exceptions not being essential to an appeal from a judgment. And the fourth and fifth grounds are without merit because no undertaking was required. Rev. Code Civ. Proc. § 445. So the motion to dismiss cannot be sustained.
• Respondent insists there are no reviewable assignments of error because what purports to be a bill of exceptions, not having been properly settled, was suppressed by the circuit court. Among [627] the papers received from the'circuit clerk is an instrument signed b y the learned circuit judge expressly suppressing the bill of exceptions. Whether or not such instrument was inadvertently signed need not be considered, for the reason that it has not been attested, and is therefore ineffectual for any purpose. Stephen v. Faus, 20 S. D. 367, 106 N. W. 56. The contention that the exceptions were not settled within the time allowed by law, • or order of the trial court is not sustained by the record. Though it certainly was irregular to direct a verdict after receiving additional evidence without the renewal of either party’s motion, such irregularity under the circumstances of this case should be disregarded as not affecting any substantial right. Rev. Code Civ. Proc. § 153. More-ever, “acquiescence in error takes away the right of objecting to it.” Rev. Civ. Code, § 2415. Undoubtedly this slight defect in procedure would have been cured had attention been called to it.
The contention that the defendant corporation was not authorized by the statute to incur debts for the purpose of constructing artesian wells clearly is untenable. Chapter 80, p. 196, Laws 1891, was entitled “An act authorizing civil townships to sink artesian wells for public purposes and to issue bonds therefor.” The act itself cannot be otherwise construed than as authorizing the construction of artesian wells at public expense, and as authorizing the issuing of bonds for the purpose of constructing the same. There was not, therefore, so far as the statute is concerned, a total want of power to incur obligations arising from the construction of artesian wells for public purposes. Section 4, article 13, of the state Constitution, is as follows: “The debt of any county, city, town, school district or other subdivision, shall never exceed five per centum upon the assessed value of the taxable property therein.' ■In estimating the amount of indebtedness which a municipality or subdivision may incur, the amount of indebtedness contracted prior to the adoption of this Constitution shall be included.” In a case strikingly analogous to the one at bar under a constitutional limitation in effect the same as the one here involved, the Supreme Court of the United States, speaking by Mr. Justice Miller, used this language: “The language of the Constitution is that no city, etc., ‘shall be allowed to become indebted in any manner or for any purpose to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the-value'of its taxable prop[628] erty. • It'shall not'become indebted. .Shall not incur any pecuniary liability.- •’■It- shall not -do this in any manner. Neither by bonds, 'nor notes',--’nor by express or implied promises. Nor shall it be done for- any'purpose. -No matter how urgent, how useful, how unanimous the wish. There stands the existing indebtedness to a given amount in relation to the sources of payment as an impassable .obstacle to the creation of any further, debt in any manner, or for any-purpose whatever. If this. prohibition is worth anything, it is as effectual against the implied as the express promise and is as 'binding in -a court of chancery as a court of law.” Litchfield v. Ballou, 114 U. S. 190, 5 Sup. Ct. 820. If, when these bonds were delivered' the existing indebtedness of the defendant township equalled or exceeded the constitutional limitation, the township was without power to incur any indebtedness whatever. Its officers were without authority to bind the corporation by any promise, express or implied, and the plaintiff ought not to recover. Any other conclusion would render the limitation wholly nugatory. Under such circumstances there would be a total want of power, not an irregular exercise of power as in a'case where the corporation is authorized to incur an indebtedness, but does not comply with the law as to the form of its obligations. Livingston v. School Dist., 9 S. D. 345, 69 N. W. 15; Id., 11 S. D. 150, 76 N. W. 301. Though no valid municipal obligation may exist in violation of the constitutional limitation, bonds are but the evidence of an indebtedness, and may be defective, lost, or destroyed without impairment of the debt itself. Therefore, if defendant was not, at the time, indebted to the extent of the limitation, plaintiff should recover as for money had and received, though .she failed to recover in a suit on the bonds. This, we understand, was the view taken by the learned circuit court. So the important question on this appeal is whether the evidence justified the verdict. The money sought to be recovered was received by the defendant -January 7, 1893. Rive per centum upon the assessed value of the taxable property within the township, as shown by the last preceding assessment, was $6,475. .It is conceded .there was a bonded indebtedness of $3,000, leaving the limit of new indebtedness at the time stated $3,475, subject to further reduction by other existing indebtedness iess whatever cash may have been in the treasury. Concerning the other indebtedness, the record is indefinite and un[629] certain, where there should be no room for controversy, and as to the amount of cash on hand there is a direct conflict, there being testimony tending to prove an overdraft on January 7, 1903, while plaintiff’s attorney testified that the treasurer’s records 'disclosed an “apparent” balance of $1,926.29. Clearly the evidence was not such as justified the verdict returned or the direction of a verdict in favor of either party.
The judgment of the circuit.court is reversed, and a new trial ordered. •