Ayers, Weatherwax & Reid Co. v. Sundback

Citations

• 5 S.D. 31
• 58 N.W. 4
• 1894 S.D. LEXIS 30

Syllabus

<p>1. The county courts of this state are courts of limited and special jurisdiction.</p> <p>2. As to courts of limited or special jurisdiction it is only after jurisdiction is affirmatively shown that the presumption of the validity and regularity of their proceedings attaches.</p> <p>3. Does the voluntary appearance of a defendant in such court do away with the necessity for a summons as a part of the judgment roll, so that such judgment roll in which no summons appears or is accounted for, is sufficient to prove the judgment, as against the rights of a Stranger to it? Quaera.</p> <p>4. A mortgage upon a stock of goods, which recites .that it is the intention of the parties that the mortgagor shall, by additions, keep the stock up to its then value, is not on that account presumptively fraudulent on its face.</p> <p>5. Where, under such a mortgage intended to cover additions, possession is taken by the mortgagee of the entire stock, including such additions, his right thereto is paramount to that of a creditor, whose judgment and execution were subsequent to such change of possession.</p> <p>6. The mortgage not being presumptively void; the mortgagee having taken possession under it; it not being shown that the sheriff had or was chargeable with notice of facts which would tend to make the mortgage fraudulent in fact, and not being directed or requested to levy upon such stock or any part of it, — it was error to charge the jury, as matter of law, that the sheriff was liable for neglect to levy an execution then in his hands for collection upon such stock, even though, upon the trial of such action against the sheriff for failure to collect such execution, such extrinsic facts were shown as would make the mortgage fraudulent as against creditors.</p> <p>(Syllabus by the Court.</p>