St. Paul Fire & Marine Ins. v. Dakota Land & Live Stock Co.

Citations

• 10 S.D. 191
• 72 N.W. 460
• 1897 S.D. LEXIS 40

Syllabus

<p>1, Where, in the abstract, appellant has inserted a specification of error as a part of its bill of exceptions on motion for a new trial, and entitled it “Assignment of Errors,!’ in the absence of a formal motion to strikeout, it will be considered as a sufficient assignment.</p> <p>2. A mortgage provided that on default in interest the mortgagee might declare the principal sum due, and “may proceed and collect the same by foreclosure of the mortgage, * * * or otherwise as they may elect.” Held, that the fact that the mortgagee has brought an action at law against the mortgagor, and recovered judgment, does not prevent a foreclosure where the money due on the note has not been collected.</p> <p>3. In a foreclosure, plaintiff alleged judgment in an action at law on the mortgage note, and issuance of execution, and a due return wholly unsatisfied. Defendants answer admitted the allegation of the paragraph except “that the execution in said paragraph mentioned was not duly returned.” Held, not a sufficient denial that the execution was returned, but simply an allegation that it was not “duly” returned.</p> <p>4. Evidence admitted generally, but admissible only to prove one issue, will be presumed ro have been introduced for that issue only, and not on other issues not presented by the pleadings.</p>