Opinion of the Court-CORSON, J.
the error exists are separable and distinguishable from the others." The rule here stated was, in effect, approved by this court in Murray v. Leonard, 11 S. D. 22, 75 N. W. 272. In the case at bar the circuit court erred in directing a verdict for $255, as, under the pleadmgs and evidence, the plaintiff was not legally entitled to a sum in excess of $205. Section 3536 Comp. Laws, reads as follows: "When a contract does not determine the amount of the consideration nor the method by which it is to be ascertained, or when it leaves the amount thereof to the discretion of an interested party, the consideration must be so much money as the object of the contract is reasonably worth." As we have seen, there was no proof on the part of the plaintiff which authorized him to recover in excess of the sum of $205 under the provisions of the statute quoted, as he had introduced no evidence as to the value of his services, and relied entirely upon the special contract. It was competent for the court, upon its attention being called to the error, to require the plaintiff to remit $50 included in the verdict; and, he having done so, the court properly denied the motion for a new trial. The precise sum in excess of the amount the plaintiff was entitled to recover clearly appears by the pleadings and evidence.
Finding no error in the record, the judgment of the court below and order denying a new trial are affirmed.
An order permitting an amendment to an answer is largely discretionary, and should not be reversed where no abuse of discretion is shown. Baskerville v. Gaar, Scott & Co., 211.
See New Trial, Exceptions, Bills of
Where the object in a suit to quiet title that the tax deed on which plaintiff relies is invalid on its face is presented by an objection to its introduction in evidence, it may be considered on appeal, though the appeal is from the judgment alone, and the evidence is not in the record. Bennett v. Darling, 1.
Where the trial court in an action to quiet title found that plaintiff was not the owner or entitled to the possession of the property, and an appeal was taken merely from the judgment, without exceptions to the findings or motion for a new trial, plaintiff could not object that the findings were incompetent, because not stating the specific evidentiary facts; there being nothing in the record to indicate that any proof of such facts was given. Naddy v. Dietze, et al., 26.
3. Findings of fact cannot be objected to on appeal, for insufficiency, where no request for further findings was made at the trial. Naddy v. Deitze et al., 26.
An appeal from a judgment, and from an order denying a new trial made after entry of judgment, will not be dismissed, as being a double appeal. Kountz v. Kountz et al., 66.
Where the evidence is not brought up for review, the question whether the facts sustain the judgment must be determined from the findings of the court. Kountz v. Kountz et al., 66.
6. Where, in a suit to quiet title, the evidence is not brought up for review, and the findings of fact as to the ownership were irreconcilably in conflict, the decree of the trial court could not be sustained. HANEY, J., dissenting. Kountz V. Kountz et al., 66.
A contention that the evidence is insufficient to support the verdict on
certain grounds will not be considered on appeal, where such grounds
are not mentioned in the specifications of error. Wilson v. Seaman,
103.
8. The discretion of the trial court as to granting or refusing a new trial
will not be disturbed on appeal, unless it appears that such discretion
has been abused. Kelly v. Anderson, 107.
9. Where an action is tried by the court without a jury, and a motion is
made for the dismissal of the action at the close of the evidence
which is granted, such motion will be taken on appeal as an applica-
tion for findings in behalf of the defendant, and, in the absence of a
motion for a new trial, the supreme court cannot review the evidence
in order to determine an assignment of error that the findings of the
court in favor of defendant were not supported by the evidence.
Northwestern Elevator Co. v. Lee et al., 114.
10. Where it appears by the abstract that certain evidence was intro-
duced by appellant. or the matter is left in doubt as to the manner in
which the evidence came into the record, the question of error in its
admission will not be considered. Baskerville v. Gaar Scott & Co., 211.
11. Where appellant's assignment of errors on appeal from an order
granting a new trial specified six particulars in which the court erred
in its charge, appellant could not complain of the order granting a
new trial. Troy Min. Co. v. Thomas, 238.
An order granting a new trial for insufficiency of evidence will not be
disturbed in the absence of an abuse of discretion. Troy Min. Co. v.
Thomas, 238.
Where an appeal is from the judgment alone, the only questions pre-
sented are whether the pleadings and findings support the judg
ment. Coleman v. Stalnacke, 242.
Where in an action to recover possession of land the complaint does
not expressly state that the tract is in the county in which the action
is brought, if there is no motion for change of venue to another
county the appellate court will presume, in support of the judgment,
that the action was instituted in the proper county. Coleman v. Stal-
nacke, 242.
An appeal from a portion of a final order in a proceeding to set off
mutual judgments may be had, though no exception was taken, the
order being a final order determining the rights of the parties, within
Comp. Laws, § 5080, which provides that orders finally determining the
rights of the parties shall be deemed excepted to. Long v. Collins et
al., 259.
16. Where the record on appeal presents only a portion of the charge given
on the court's own motion, it will be presumed that, as an entirety
such charge covered everything properly contained in the instructions
offered and refused. Kolbe v. Harrington, Sheriff, 263.
17. In determining the correctness of a ruling directing a verdict, the
court will not consider all the evidence, but the evidence of the moving
party will only be considered in so far as it tends to support the case
of the adverse party. FULLER, J., dissenting. Merchants National
Bank v. Stebbins, 280.
18. Findings cannot be disturbed on appeal where it cannot be said, with-
out discrediting several unimpeached witnesses, that there is a prepon-
derance of evidence against them. Schilling v. Twitchell, 290.
19. Under Comp. Laws, § 5217, providing that on appeals from orders the
clerk shall transmit the order appealed from and the original papers
used on the hearing, the affidavits on the hearing of a motion for a
new trial will be considered on appeal, though they are not a part of a
bill of exceptions. Bedtkey v. Bedtkey, 310.
20. An affidavit of a juror showing that a verdict was arrived at by re-
sort to chance, which affidavit the juror subsequently repudiated—
the record showing that he was wrong in the first instance-does not
overcome the presumption that an honest jury reached a conclusion
based upon the evidence. Bedtkey v. Bedtkey, 310.
21. Though an undertaking on appeal is not sufficient as a statutory stay
bond because of the omission of certain words, yet the sureties, hav-
ing been required to justify in the sum of $2,000, and by its words
having undertaken not only to pay costs and damages to the amount
of $250, but the amount of the judgment, if it be affirmed, are charged
with notice that they are executing something more than a cost
bond, and are bound thereby as a common law undertaking, on evi-
dence that it was treated by counsel as sufficient, and that execution
was actually stayed thereby. Coughran v. Hollister et al., 318.
22. Testimony of surety on an appeal bond, sufficient, by its terms, as a
common law undertaking for payment of the judgment if it be af-
firmed, that at the time he signed it he was informed it was simply a
cost bond, is inadmissible, it not being shown who so informed him,
or that he relied on the statement. Coughran v. Hollister et al., 318.
23. Where an answer of a witness is not responsive to the question, and
an objection thereto is sustained, but the answer is not stricken out
or withdrawn from the jury, an assignment of error with reference
thereto will not be considered. Anderson v. Jordan, 395.
An objection that the insufficiency of the evidence to justify the find-
ings, and errors of law, could not be reviewed, for the reason that
it did not affirmatively appear from the abstract that specifications
of the particulars on which the evidence was claimed to be insuffi-
cient, and the particular errors of law relied on, were annexed to or
made part of the bill of exceptions, was bad, where respondents did
not file an additional abstract denying that such specifications were
annexed to the bill of particulars. Taylor v. Vandenberg et al., 480.
25. Where in an action by one co-tenant to recover profits of a re-sale
from another co-tenant, it appeared that defendant had placed im-
provements on the land, and the question of defendant's honesty of
intention was one of fact for the court, a finding thereon, not being
against a clear preponderance of the evidence, will not be disturbed.
Friedrich v. Fergen, 541.
26. The question as to the sufficiency of the evidence to support findings
cannot be considered on appeal. where neither the record nor assign-
ment of errors specified particular objections. State v. City of Pierre
559.
27. Where the notice of appeal in the abstract does not show that the ap-
peal was taken from the order denying a new trial, the evidence can-
not be reviewed. State v. City of Pierre, 559.
28. By Comp. Laws, § 5082, a bill of exceptions must be conformable to
the truth, or be corrected until it is; and by section 5083 it is the
duty of the trial judge to strike out redundant matter. On appeal
there was attached to the judgment roll a document designated "Bill
of Exceptions," and on a separate page the trial court certified that
"the foregoing" bill of exceptions having been proposed, and amend-
ments proposed, all of which were allowed, the "foregoing" bill, when
amended, contained a statement of all the evidence. Held, that there
was no proper bill before the appellate court, the proper practice be-
ing for the judge to indicate such changes, if any, as he deems should
be made in the proposed bill, and that then an engrossed bill should
be prepared, without interlineations or erasures, complete in itself.
Dyea Electric Light Co. v. Easton et al., 572.
29. On appeal, in the absence of any properly certified exceptions, it must
be presumed that the evidence was sufficient to sustain the verdict.
and that no errors of law occurred at the trial. Dyea Electric Light
Co. v. Easton et al., 572.
30. Though by statute, findings of fact by the trial court are not as
controlling upon the appellate court as the verdict of a jury, they
are presumptively correct, and must stand unless the evidence clear-
ly preponderates against them. Hill v. Whale Min. Co. et al., 574.
31. Appeal will not lie where there is merely a verdict, Comp. Laws, §§
5214, 5216, authorizing it only from a judgment or order. Nordin v.
Berner et al., 611.
32. Sufficiency of the evidence cannot be considered on appeal, without an
assignment of error questioning it. Nordin v. Berner et al. 611.
33. Assignments of error not discussed in the brief will be presumed to
have been abandoned. Nordin v. Brener, et al., 611.
When a party who has not been properly served with process appears in
a case, and asks to have a decree against him set aside, for the reason
that the court had no jurisdiction of his person, and for the further
reason that such decree was procured by fraud and deceit, and was
without evidence to support it, such appearance is general, going di-
rectly to the merits, and is a waiver of all defects in the service of
process. Henry v. Henry, 80.
1. Inasmuch as the submission to arbitrators may be revoked any time
before the award, the action of the court in refusing to dismiss an
action will be deemed proper where it appeared from the record
that proper notice of a revocation of the submission was given, and
it did not appear when the award was made. Friedrich v. Fergen, 541.
ASSESSMENT AND TAXATION.
See Taxation.
ATTACHMENT.
Plaintiff in an attachment suit moved before the hearing that the court
extend the time within which he might file certain affidavits and
proofs to amend those theretofore filed in support of the affidavit
of attachment, on the ground that they were newly discovered evi-
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