sound rule in South Dakota

1968"This not only seems to us the sound rule, but it is the rule affirmatively established and announced by decision of this court over thirty years ago and ever since followed until Reddin v. Frick. * * * We think the contrary rule announced in Reddin v. Frick was erroneous and ill-advised, and Reddin v. Frick and Barrie v. Barrie (1931) 58 S.D. 82 , 235 N.W. 103 , in so far as. they conflict with the views expressed in this opinion,, are now specifically overruled." .

1968"This not only seems to us the sound rule, but it is the rule affirmatively established and announced by decision of this court over thirty years ago and ever since followed until Reddin v. Frick. * * * We think the contrary rule announced in Reddin v. Frick was erroneous and ill-advised, and Reddin v. Frick and Barrie v. Barrie (1931) 58 S.D. 82 , 235 N.W. 103 , in so far as. they conflict with the views expressed in this opinion,, are now specifically overruled." .

1943That the statements made by McNabb, as testified to by the plaintiff, constituted a warranty is affirmed by the following authorities which we believe state a sound rule: Rittenhouse-Winterson Auto Co. v. Kissner, 129 Md. 102 , 98 A. 361 ; Kuester v. Paige Sales Co., Inc., 209 App. Div. 294 , 204 N. Y.

1943That the statements made by McNabb, as testified to by the plaintiff, constituted a warranty is affirmed by the following authorities which we believe state a sound rule: Rittenhouse-Winterson Auto Co. v. Kissner, 129 Md. 102 , 98 A. 361 ; Kuester v. Paige Sales Co., Inc., 209 App. Div. 294 , 204 N. Y.

1943S. 547; Worden v. Peck, 245 Mich. 237 , 222 N. W. 101 ; Marsten et ux. v. Bill Warner, Inc., 143 Wash. 58 , 254 P. 850 ; Donaldson v. Carstensen et al., 188 Minn. 443 , 247 N. W. 522 .

1943S. 547; Worden v. Peck, 245 Mich. 237 , 222 N. W. 101 ; Marsten et ux. v. Bill Warner, Inc., 143 Wash. 58 , 254 P. 850 ; Donaldson v. Carstensen et al., 188 Minn. 443 , 247 N. W. 522 .

1943S. 547; Worden v. Peck, 245 Mich. 237 , 222 N. W. 101 ; Marsten et ux. v. Bill Warner, Inc., 143 Wash. 58 , 254 P. 850 ; Donaldson v. Carstensen et al., 188 Minn. 443 , 247 N. W. 522 .

1943S. 547; Worden v. Peck, 245 Mich. 237 , 222 N. W. 101 ; Marsten et ux. v. Bill Warner, Inc., 143 Wash. 58 , 254 P. 850 ; Donaldson v. Carstensen et al., 188 Minn. 443 , 247 N. W. 522 .

1943S. 547; Worden v. Peck, 245 Mich. 237 , 222 N. W. 101 ; Marsten et ux. v. Bill Warner, Inc., 143 Wash. 58 , 254 P. 850 ; Donaldson v. Carstensen et al., 188 Minn. 443 , 247 N. W. 522 .

1943S. 547; Worden v. Peck, 245 Mich. 237 , 222 N. W. 101 ; Marsten et ux. v. Bill Warner, Inc., 143 Wash. 58 , 254 P. 850 ; Donaldson v. Carstensen et al., 188 Minn. 443 , 247 N. W. 522 .

1943That the statements made by McNabb, as testified to by the plaintiff, constituted a warranty is affirmed by the following authorities which we believe state a sound rule: Rittenhouse-Winterson Auto Co. v. Kissner, 129 Md. 102 , 98 A. 361 ; Kuester v. Paige Sales Co., Inc., 209 App. Div. 294 , 204 N. Y.

1936In the Blackman Case, supra, 19 S. D. 534, 104 N. W. 250, 252 , there was an attempt collaterally to attack an order of county court authorizing an administrator’s sale of realty and the matter was discussed at length and this court, by Presiding Judge Corson, said: “It is contended), as before stated, that the order or decree of the probate court authorizing the sale of the property is not conclusive against collateral attack, for the reason that the facts set out in the petition for the order did not show that there were any valid debts existing and properly allowed, due from the estate, and

1936In the Blackman Case, supra, 19 S. D. 534, 104 N. W. 250, 252 , there was an attempt collaterally to attack an order of county court authorizing an administrator’s sale of realty and the matter was discussed at length and this court, by Presiding Judge Corson, said: “It is contended), as before stated, that the order or decree of the probate court authorizing the sale of the property is not conclusive against collateral attack, for the reason that the facts set out in the petition for the order did not show that there were any valid debts existing and properly allowed, due from the estate, and

1935That is the rule announced by the New York Court of Appeals (Heating & Plumbing Finance Corp. v. Friedman [1934] 264 N. Y. 285 , 190 N. E. 641 ) in a case very similar upon the facts to the present case, and we think it is the sound rule.

1935That is the rule announced by the New York Court of Appeals (Heating & Plumbing Finance Corp. v. Friedman [1934] 264 N. Y. 285 , 190 N. E. 641 ) in a case very similar upon the facts to the present case, and we think it is the sound rule.

1926The possibility of such waiver of this written notice of decision has been recognized by this court in the case of Clark Implement Co. v. Wadden, supra, quoting" with approval Mallory v. See, 129 Cal. 356 , 61 P. 1123 , as follows: “That no procedure, other than the service of written notice of -decision, will suffice, where defendant has not waived such written notice.” We 'believe the doctrine above enunciated of waiver of written notice of decision, not by knowledge alone, but -bv knowledge plus conduct, finds ample support both in reason and upon the authorities.

1926The possibility of such waiver of this written notice of decision has been recognized by this court in the case of Clark Implement Co. v. Wadden, supra, quoting" with approval Mallory v. See, 129 Cal. 356 , 61 P. 1123 , as follows: “That no procedure, other than the service of written notice of -decision, will suffice, where defendant has not waived such written notice.” We 'believe the doctrine above enunciated of waiver of written notice of decision, not by knowledge alone, but -bv knowledge plus conduct, finds ample support both in reason and upon the authorities.

1926The possibility of such waiver of this written notice of decision has been recognized by this court in the case of Clark Implement Co. v. Wadden, supra, quoting" with approval Mallory v. See, 129 Cal. 356 , 61 P. 1123 , as follows: “That no procedure, other than the service of written notice of -decision, will suffice, where defendant has not waived such written notice.” We 'believe the doctrine above enunciated of waiver of written notice of decision, not by knowledge alone, but -bv knowledge plus conduct, finds ample support both in reason and upon the authorities.

1925As was said by Chief Justice Marshall in U. S. v. Planters’ Bank of Georgia, 9 Wheat. 904 , 6 L. ed. 244: “It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen.

1922That after the quotient was obtained, the jury considered the same, and decided that $425 was a fair verdict, and afterwards returned it to the court.” The party preparing the later affidavits undoubtedly had in mind the .following words of this court, found in Long v. Collins, ■Supra: “Had the method been'adopted merely to ascertain what each juror considered reasonable, and each juror reserved to himself the right to afterwards object, should he think it unreasonable, an honest expression of opinon, free from hazard1, chance, or lot, might afterwards he obtained, and in such a case the verdi

1922That after the quotient was obtained, the jury considered the same, and decided that $425 was a fair verdict, and afterwards returned it to the court.” The party preparing the later affidavits undoubtedly had in mind the .following words of this court, found in Long v. Collins, ■Supra: “Had the method been'adopted merely to ascertain what each juror considered reasonable, and each juror reserved to himself the right to afterwards object, should he think it unreasonable, an honest expression of opinon, free from hazard1, chance, or lot, might afterwards he obtained, and in such a case the verdi

1922That after the quotient was obtained, the jury considered the same, and decided that $425 was a fair verdict, and afterwards returned it to the court.” The party preparing the later affidavits undoubtedly had in mind the .following words of this court, found in Long v. Collins, ■Supra: “Had the method been'adopted merely to ascertain what each juror considered reasonable, and each juror reserved to himself the right to afterwards object, should he think it unreasonable, an honest expression of opinon, free from hazard1, chance, or lot, might afterwards he obtained, and in such a case the verdi

1913It must be understood that the “clerical error” referred to in these decisions is a clerical error of the class referred to in the case of Hughes v. Payne, 22 S. D. 293, 117 N. W. 363 , an error which appears to be such on the face of the instrument, and the nature of" which is ascertainable from the instrument itself.

1913Dec. 87 , wherein it is held: “Mere clerical errors cannot be corrected in equity, because there is no defect to' be rectified; the remedy at law is perfect”— and the case of Sprague v. Edwards, 48 Cal. 239 , wherein it was •said: “When it is apparent upon the inspection of a contract that, by a clerical error, a wrong word has been inserted, it will be read, in an action at law, as though the right word was in its place, and resort need not be had to a court of equity for a reformation of the instrument.” These cases state a sound rule of law, the application of which is in harmony with appel

1909Cooley in his work on Constitutional Limitations (7th Ed.) says at page 529: “It is a sound rule of construction that a statute should have a prospective operation only unless its terms show clearly a legislative intention that it shall operate retrospectively.” In the case of Price v. Hopkin 13 Mich. 318 , in construing a statute affecting a question of limitation of time for bringing actions, which statute, if applied to the case then before the court, would absolutely take from the plaintiff any right of action, the court holds that such statute could not be applied to such case; and it hav

1907The sound doctrine now is, as shown by statutes and judicial decisions, that the capital and debts of banking and other moneyed corporations constitute a trust fund and pledge for the payment of creditors and stockholders, and a court of equity will lay hold of the fund, and see that it be duly collected and applied.” The following cases are directly in point: Sanger v. Upton, 91 U. S. 56 ; Biddle Purchasing Co, v. Steel Wire & Nail Co., 16 Wash. 681 , 48 Pac. 407 ; Sawyer v. Hoag, 17 Wall.

1907The sound doctrine now is, as shown by statutes and judicial decisions, that the capital and debts of banking and other moneyed corporations constitute a trust fund and pledge for the payment of creditors and stockholders, and a court of equity will lay hold of the fund, and see that it be duly collected and applied.” The following cases are directly in point: Sanger v. Upton, 91 U. S. 56 ; Biddle Purchasing Co, v. Steel Wire & Nail Co., 16 Wash. 681 , 48 Pac. 407 ; Sawyer v. Hoag, 17 Wall.

1907The sound doctrine now is, as shown by statutes and judicial decisions, that the capital and debts of banking and other moneyed corporations constitute a trust fund and pledge for the payment of creditors and stockholders, and a court of equity will lay hold of the fund, and see that it be duly collected and applied.” The following cases are directly in point: Sanger v. Upton, 91 U. S. 56 ; Biddle Purchasing Co, v. Steel Wire & Nail Co., 16 Wash. 681 , 48 Pac. 407 ; Sawyer v. Hoag, 17 Wall.

1907(U. S.) 610. /Being convinced of the soundness of this doctrine, and feeling satisfied.that our former decisions.to the effect that insolvency converts the assets of a corporation into a trust fund for the equal benefit of creditors, .it follows that .the preference given the bank is fraudulent in. law, and its lack of knowledge as to the character of the transfer and exact condition of the Williams-Flower Company when the mortgage was executed, is wholly - immaterial. ) Tacoma Ledger Co. v. Home Building Association, 37 Wash. 467 , 79 Pac. 992 .

1907(U. S.) 610. /Being convinced of the soundness of this doctrine, and feeling satisfied.that our former decisions.to the effect that insolvency converts the assets of a corporation into a trust fund for the equal benefit of creditors, .it follows that .the preference given the bank is fraudulent in. law, and its lack of knowledge as to the character of the transfer and exact condition of the Williams-Flower Company when the mortgage was executed, is wholly - immaterial. ) Tacoma Ledger Co. v. Home Building Association, 37 Wash. 467 , 79 Pac. 992 .