Tolerton & Stetson Co. v. Casperson

Citations

• 7 S.D. 206
• 63 N.W. 908
• 1895 S.D. LEXIS 62

Syllabus

<p>1. On an appeal to this court, it is sufficient to serve the undertaking on appeal on the opposite party, and file it with the clerk of the trial court.</p> <p>2. Where the appellant includes in his abstract evidence which respondent claims was not before the court below, and does not constitute a part of the bill of exceptions, it is the proper practice to bring the same to the attention of this court by an additional abstract.</p> <p>3. When respondent claims that the affidavit to the undertaking on appeal is insufficient in form, it is proper practice to bring the same before this court by an additional abstract.</p> <p>4. An affidavit for an undertaking on appeal that does not substantially comply with the provisions of Section 5232, Comp. Laws, renders the undertaking ineffectual as an undertaking on appeal.</p> <p>5. This court, upon a proper showing, and upon such terms as may be just; is authorized to permit a new and sufficient undertaking to be filed in this court in such case.</p> <p>6. An assignor for the benefit of creditors, whose property was attached before such assignment, has such a reversionary interest in the assigned estate that he may move to vacate the attachment.</p> <p>7. Where a person tacitly encourages an act to be done, he cannot after-wards exercise his legal right in opposition to such consent, if his conduct or act of encouragement induced the other party to change his position so that he will be pecuinarily prejudiced by the assertion of such adverse claim.</p> <p>(Syllabus by the Court.</p>