McPherson v. Julius

Citations

• 17 S.D. 98
• 95 N.W. 428
• 1903 S.D. LEXIS 18

Syllabus

<p>1. Comp. Laws 1887, § 5093, provides that the court or judge may, “upon good cause shown,” in furtherance of justice, extend the time within which a bill of exceptions may be settled, etc., after the time limited therefor has expired, and fix another time within which such act may be done. Held, that .the court’s power to fix another time within which a bill of exceptions might be settled after the 60 days prescribed therefor had expired was limited to cases where good cause was shown, and that the exercise of such authority was, therefore, subject to review by ■ the supreme court.</p> <p>2. On April 1, 1899, the court announced its decision in favor of plaintiffs, and the findings and judgment were formally signed on June 24th. On July 26th defendants gave notice of their intention to move for a new trial, and on August 25th the court granted defendants’ attorneys, an additional 60 days within which to settle the hill of exceptions. The last of the transcript was delivered to defendants’ attorneys on the 20th of October, 1900, but no additional time.was granted for the preparation of the bill of exceptions until May 13, 1901, when the court, on an application reciting that the delay had been caused by negotiations for a settlement, granted defendants additional time within which to settle their bill of exceptions. The negotiations for a settlement, however, did not extend for more than two weeks, when they were terminated. Held, that no sufficient cause for the granting of such extension was shown.</p> <p>3. Where, in an action to quiet title to a mining claim, defendants pleaded title by virtue of a particular location, and the answer was not amended, and no motion to amend was made in the trial court, defendants were not entitled to claim the ground in controversy for the first time on appeal under another location.</p> <p>4. Where, in an action to quiet title to a mining claim, the court found that plaintiffs’ claim, including the ground in controversy, was p