Neeley v. Roberts

Citations

• 17 S.D. 161
• 95 N.W. 921
• 1903 S.D. LEXIS 26

Syllabus

<p>1. Though the abstract was defective for failing to state from what the appeal was taken, where no motion to dismiss was made, and it was not disputed that the appeal was in fact taken from the judgment ind order denying a motion for new trial, made after judgment, appellant should be allowed to amend without terms.</p> <p>2. Comp. Laws. 1887, § 5237, provides that on appeal from a judgment the • court may review any intermediate order which involves the. merits a.nd necessarily affects the judgment. An action was referred to a referee who regularly heard the same, and made his report, which was favorable to the plaintiff. Afterwards, on motion of defendant, the report was set aside. Later a retrial was had before the court without a jury, and judgment was ordered for defendant. Held, that on appeal from , the judgment the order setting aside the referee’s report was re viewable.</p> <p>3. The fact that an independent appeal had been taken from the order was immaterial, where it was dismissed without consideration on the merits.</p> <p>4. A motion to reject and set aside the findings and conclusions of a referee should he denied where no reasons are assigned for such action.</p> <p>5. The remedy of a party who is dissatisfied with a referee’s decision is to move for a new trial.</p> <p>6. Motion for judgment on the report of the referee should be sustained where the report is regular in all respects, and no reason is assigned in the notice of motion of either party why it should not be accepted.</p> <p>7. A contract provided that plaintiff should keep and care for a flock of sheep belonging to defendant for five years, and then receive one-half of the flock for his services. After the close of the contract period, the parties having failed to agree on a division, plaintiff brought a suit in equity, setting- out the facts, and praying “that the said contract * * * may be specifically performed * * * after the payment of the amount found due plaintiff,” etc. Defend