Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-10-04
OPINIONS OF THE SUPREME COURT.
PUBLISHED BY AUraoRlry.
E. G. SMITH. Reporter.
H.A. JAxDr, Trustee.
y.
CHARLES A. SOUTH, Sheriff Linools county
In THE SUPREME Court or tn. Tn.s1.
TOBY or DAKOTA, AT THE JANuAlY
TERN, 1879. ., got,{a 4E, - ,

"1O11s OAAUCA, AT5Th SANUA1f
TERN, 1879. al a.. o4,i4 IT, ~
Continued from Yesterday ~
The thirteenth finding Of fact 10 In these
"The plaintiff has Seen damaged
BY reason Of the Toss Of time sHd mosey *.
pended ~in!1pursait Of the property, ins the
Of 0~neehundred sdollsrs.YYe 10 The sixth
vi law VI lind this language :
" The plaintiff is entitled 10 judgment
against defendant for tho p0eeeMioH Of the
property by him taksn,s soldsiand taohe
hundred dollars damages az e~ampensettpn
for time spent, md money actually expend-
ed ID tho pursuit OF said property" ~ .
Now while this coustiW0uld not noysrse
the judgment of the couttlbelow because OF
the iDsuf1cie1cy Of the evidence to support
court below. that the bill of exceptions eouat
tanned oil Of the evidence, this court will
the Objectionable testimony bearing
upon q single question in connection with
the finding of fact aud conclusion Of law
based upon thata finding, the findiuG Of the
court below being properly here upon the
record) and when II clearly appears ss in
case that the evidence was improperly
received aud that the finding Of fact was
based upon thatimprOpsr evidence andthat
the conclusions OF law upon that finding Of
fact was erroneous, this court will revere.
Applying the rule here indicated 10 the
case at bar, and 1t Clearly appears that the
district our allowed the prevailing party
thirty dollars for three days time attending
upon the case, and fourteen or fifteen dol
lars for bis personal expenses during the
same time, and fourteen dollars for expenses
of tttorney There is also the testimanv Of
the witness, g. G.. Moody, which taken in
connection with The findings Of the court.
shows unmistakably that one hundred, dol.
lars damages were awarded the prevailing
party for three days time and personal ex-
penses 10 attendance upon the trial and for
attorney or counsel ices.
On page 58l. sec. 377, revised statutes. We
find this provision: THE amount for at
torneys. solicitors and counsel 10 civil and
criminal actions must be left to the agree
Sec. 1913. same page, Is as follows: When
appears that the debtor has made . written
contract for the allowance of attorneys fees,
the same aus be allowed by the court in
conformity to the instrument, and must
form a part of the judgment aud be incor-
| porated therein
10 this territory the prevailing party can
not recover attorneys OF counsel fees, un-
less there be an agreement or contract ex-
Tress or implied TO pay the same. Does
the statute authorizing the recovery 10 az
action for the wrongful taking or detention
OF personal property. Of damages for the
detention, change the rule? We think not
The general rule as to damages in tort &C.
tons or actions not founded upon contract
is the value of the property wrougiully t.
ken, at the time or Ut any time before recov
cry. When the action is for the recovery
OF specific articles of personal property
wrongtully taken in addition TO . recovery
of the property The prevailing party may re-
cover damages for the wrongful detention
The reasons for this provision are apparent
It will often occur that the prevailing party
has sustained damages 10 being deprived Of
the use Of bis property. by tho decrease ID
the value Of his property. while deprived Of
its possession, or the property may have
been injured or damaged while the prevail
ing party was deprived of bis right Of poe
session. 10 these snd like cases, dsvnagel
for detention would be recoverable. We ses
no moro propriety in allowing}the prevail
ing party in this action, compensation FOL
PERSONAL expenses, payment for bis loss O
time in connection with the prosecution O
the action, and, for attorneys and counee
f os' aso y. .r, snv. ~..so"si .s, so '''g y
couia no, h.v. hasn ~. ;n,sn,ion ~ ~.
,s. d;i N o;v;ns como.n.s,;on - . nv ~.
.sii,no n.,.v = III -. ~ dsm. -, -,
]rnnsf,I ds,sn,;on of -. nron:,,x - ~,
thnr;.. ~ snrcs.sfnin:,,p $500. $3.50. -,
r.rsnn.s synen.ss ~. nf,;ms .sns.s.. y
an s,.o.ns. -. v.ii =. counsel IA .,,or
ns,,. sae. SScnid ri. co.r, ..nc,,on =
.ns,.,s 's ,S. ,,irS. nv. ns3,sm. - Ill.,; =. =
,m.. -. not - =. =. M..
MON ~ ssnct;on an .,in-.pcs f., ici,.. :.
fssIinss' or for ment.i .n1;stv 3f ~,
scr,eve1 nsrtv nv re.sen IF 1fhs vsnne9r
%tseten,ion nf ia nIcnerty -
Ttsins os, ,h;.Irls.. h..;,. h.a. .1,o.s,
:, ,he n,evs;i;no n.rtv .mcnnt,ns IN ~
sooree,te n one hnndfed doIisrs ~ ';ndo
msnt a ia rn,;rt ]el6S sn,n.tl + Ev.r.s
srd .snAss tTssiinndsssd II tia -. ~
onlv error. poss,bly mia court might reve,s
a. ir ths rhartesnth, 1nrafnr Of fact. ana n
10 I part Of the sixth Conclusion Of law an1
Aim -. to ihe rat If ,hs indsm.It I,