MacGregor v. Pierce

Citations

• 17 S.D. 51
• 95 N.W. 281
• 1903 S.D. LEXIS 9

Syllabus

<p>1. Under Comp. Laws 1887, § 6090, providing that a party intending to move for a new trial must serve on the adverse party a notice of his intention, designating the statutory grounds of the motion, etc., the notice of intention is a prerequisite.</p> <p>2. Where, on appeal, it affirmatively appears that no notice of intention to move for a new trial wa.s given, and the motion therefor was made and overruled on the same day, and there is nothing in the record to indicate service of the motion on opposing counsel, or their presence at the hearing', a waiver of notice of intention cannot be presumed,</p> <p>3. Where, by reason of failure to give notice of intention to move for a new trial, the court below was without authority to entertain the motion therefor, the legal status of an appeal is that of one from the judgment alone.</p> <p>4. Where the duly, recorded certificates of redemptions issued by the sheriff to redemptioners recite that all the proof necessary to entitle them to redeem was furnished, and the sheriff, after showing diligent search, and loss or destruction of many papers, testifies that he was satisfied that a proper showing of the right to redeem was made, and he is corroborated in this by the attorney for the redemptioners, the evidence, after the lapse of several years, and as against a prior incumlrancer, who was guilty of laches, shows a sufficient compliance with the formalities prescribed by statute for redemption.</p> <p>5. By accepting and retaining the full amount of redemption money, the purchasers at judicial sale waive legal defects in the redemption procedure.</p> <p>6. An incumbrancer who doesjnot attempt to redeem from an unquestion- „ ed sale under a prior mortgage cannot challenge the regularity of a redemption therefrom by a junior incumbrancer.</p> <p>7. An incumbrancer is not prejudiced by the fact that a sheriff’s deed under a prior mortgage foreclosure is made to a junior incumbrancer as redemptioner, instead of to the prio