Hayden v. City of Sisseton

171 N.W. 88, 41 S.D. 413, 1919 S.D. LEXIS 23

• Court: South Dakota Supreme Court
• Decided: March 12, 1919
• Docket: File No. 4458
• Status: Published

Opinion

SMITH, P. J.

[i] Appeal from a judgment entered Sept. 12, 1916, and from an order denying a new trial. The appeal •was perfected .'September 7, 1918. The time' for appeal had then-expired, and this -court is without jurisdiction to entertain the appeal from- the judgment. The appeal from the order overruling-the motion for a new trial was taken within 60 days after the filing of the order, and is before us for consideration. Port Huron v. Zickrick, 25 S. D. 475, 127 N. W. 646; Carlberg v. Field, 31 S. D. 209, 140 N. W. 267.

[2, 3] There are ten assignments of error, five of which are abandoned'by appellant in his'brief, and require no consideration. Three of the remaining assignments are as follows:

“(6) That the court erred' in making the fifteenth finding of fact,” reciting the finding.

“(8) That the court erred in rendering judgment in favor of ■the defendants as against the plaintiff.

“(9) That the court erred in not making findings in favor of the plaintiff upon all the issues, that the plaintiff is entitled to recover the amount of bonds upon which this action is brought.”

The tenth assignment alleges error in overruling plaintiff’s motion for a new trial. None of the four assignments quoted refer, by number or otherwise, to corresponding specifications of error, but'aside from this, they are wholly insufficient to present any question for review. Anderson v. Standard Acct. Ins. Co., 36 S. D. 390, 155 N. W. 1; Scanlon v. Rock, 25 S. D. 152, 125 N. W. 638; Stephens v. Faus, 20 S. D. 367, 106 N. W. 56.

These assignments being insufficient to present any ground for a new trial, the motion for a new trial was properly overruled.

[4] The seventh assignment is as follows:

“That the court erred in finding as a matter of law that 'the defendant is entitled to the judgment of this court dismissing said action upon the merits and for its costs and disbursements.”

- Assuming without deciding that this assignment of error might be sufficient to present the ¡question of law whether .the judgment is sustained by the findings of fact, it is sufficient to observe that' this question cannot be raised upon a motion for a new trial, but only upon an appeal from the judgment. The time for appeal from the judgment having expired, 'the question is not before us for review. In re Roberts Estate, 170 N. W. 580.

The order of the trial court is therefore affirmed.