Kent v. Dakota Fire & Marine Insurance

Citations

• 2 S.D. 300
• 50 N.W. 85
• 1891 S.D. LEXIS 30

Syllabus

<p>1. The party alleging error in this court must be able to establish affirmatively the existence of such error by the record. It is only when the record affirmatively shows error that this court will reverse the judgment.</p> <p>2. Every presumption is in favor of the correctness of the judgment of a court of general jurisdiction until the contrary is made affirmatively to appear.</p> <p>3. Under the provisions of Section 1, Chapter 112, Laws 1889, an order of reference should be made by the court or judge, and entered of record, but on appeal to this court, in the absence of evidence in the record showing that such an order was not made, the court will presump, in support of the judgment, that such an order was duly made.</p> <p>4. A recital in the judgment that the issues “having been duly and legally referred, ” in the absence of evidence in the record countervailing such recital, or in any manner tending to impeach it, will be taken as true and based upon sufficient evidence before the court below;</p> <p>5. By Sección 3 of said chapter, it is provided “that the court may review such report [of the referee,] and on motion enter judgment thereon, or set aside, or alter, or modify the same, and enter judgment upon the same so altered or modified, and may require the referees to amend their reports when necessary.” Held, that, under this provision the court was authorized to add conclusions of law, when the same were omitted or imperfectly stated in the report, and enter judgment upon the findings so modified, without re-referring the report to the referee for amendment.</p> <p>6. By Section 1 of aaid chapter, it is provided that “all or any of the issues in an action, whether of %et or law, or both,” may be referred. And by Section 3 it is provided that referees “must state the facts found and their conclusions of law separately. ” Held, construing- the two sections together, that referees are only required to state their conclusions of law when all the issues o