Opinion of the Court-FULLER, J.

[19 S. D.

charge of fraud, and it is plainly apparent that such defense might have been discovered by reasonable inquiry long prior to the commencement of the original action. To the point that the remedy here invoked is confined to extraordinary cases, we quote from section 485, Freeman on Judgments, as follows: "The rule allowing parties to appeal to chancery against a judgment in any court is of great strictness and inflexibility, and it is necessary that it should be so, as otherwise the jurisdiction of that court would soon supplant all other tribunals. A court of equity therefore will not lend its aid unless the party claiming its assistance can impeach the judgment by facts, or on the grounds of which he could not have availed himself at law, or was prevented from doing it by fraud or accident or the act of the opposite party, unmixed with negligence or fault on his own part. When a party has once an opportunity of being heard, and neglects to do so, he must abide the consequences of his own neglect. A court of equity cannot relieve him, though the judgment is manifestly wrong." In Melms v. Pabst Brewing Co., 93 Wis. 153, 66 N. W. 518, the court say: "In an action to set aside conveyances for fraud committed many years before the commencement of the action, the plaintiff must allege and prove the time when the fraud was discovered, and what the discovery was, so that the court may clearly see whether, by the exercise of ordinary diligence, the discovery might not have been made before." Where either mistake, fraud, or ignorance of the facts is relied upon, and delay is sought to be excused, the allegations of the complaint must be sufficient to show a court of equity that the plaintiff has not slumbered on his rights, and that the remedy is invoked within a reasonable time after a discovery was or ought to have been made. Pipe V. Smith, 5 Colo. 146; Farnam v. Brooks, 9 Pick. 212; Bank v. Bank, 122 Iowa, 737, 98 N. W. 606; Bank v. Campbell, 12 Ind. 42;

Aug., 1905]

Opinion of the Court-FULLER, J.

Casey v. Gregory, 56 Am. Dec. 581. The headnote, fully sustained by the opinion, in the case of Crim v. Handley, 94 U. S. 652, is as follows: "The court affirms the doctrine announced in Hendrickson v. Hinckley, 17 How, 443, that a court of equity will not enjoin a judgment at law unless the proof clearly shows that the defendant had a just defense, of which he could not avail himself at law, or to which, if available, he was prevented from resorting by fraud or unavoidable accident, unmixed with any fault or negligence in himself or his agent." When a person seeks to enjoin a judgment at law, the specific grounds upon which the complainant's equity rests must be distinctly set forth, and it is indispensable that the complaint show upon its face that the judgment assailed was not rendered by reason of his own negligence in not making the necessary defense. Neal v. Henderson, 72 Ga. 209; Brenner v. Alexander, 19 Pac. 9; Kelleher v. Boden, 55 Mich, 295, 21 N. W. 346; Mastick v. Thorp, 29 Cal. 445.

If, as alleged in the complaint and admitted by the demurrer, one of the warrants was valid, and the payee named in the other constructed a sidewalk, for which he was entitled to a warrant on a fund created by special assessment against city property, the failure to tender the just amount, or the warrant to which the defendant was confessedly entitled, violates the maxim that he who seeks equity must do equity.

The order of the trial court sustaining the demurrer is affirmed.

INDEX

ACKNOWLEDGMENTS

1. Rev. Civ. Code, 1903, § 974, provides that the acknowledgment of
an instrument must not be taken, if executed by a corporation,
unless the officer taking it knows or has satisfactory evidence that
the person making the acknowledgment is the president or secre-
tary; and section 981 gives the form of a certificate of acknowl-
edgment executed by a corporation, and provides that the officer
must certify that the person acknowledging is known or proved to
be the president or secretary. Section 636, Rev. Code Civ. Proc.
1903, provides that, to entitle one to foreclose a mortgage by ad-
vertisement, any assignment of the mortgage must have been duly
recorded. Held, that where the certificate of acknowledgment
of an assignment of a trust deed given by a corporation certified
that the persons making the acknowledgment were personally
known to the officer to be the vice president and assistant secre-
tary of the corporation, the acknowledgment was insufficient to
authorize recording of the assignment and a foreclosure of the
trust deed by advertisement, under section 636, was of no validity.
Erickson v. Conniff et al., 41.

2. Under Rev. Civ. Code, § 974, requiring the officer taking an ac-
knowledgment of an instrument executed by a corporation to have
satisfactory evidence that the person making the acknowledgment
is the president or secretary of the corporation, and section 981,
subd. 2, requiring the certificate of acknowledgment to state that
the president or secretary of the corporation which executed the in-
strument appeared and acknowledged that the corporation execut-
ed the same, a certificate of acknowledgment stating that the per-
son acknowledging the instrument personally appeared, and said
that he was the president of the corporation, and that the seal
affixed to the instrument was the corporate seal of the corporation,
and that the instrument was signed and sealed in behalf of the
corporation by authority of its board of directors, and that the
president acknowledged the instrument to be the free act and deed
of the corporation, was sufficient, although it failed to specifically
certify that the person acknowledging the instrument was the
president of the corporation. State v. Caughran, 271.

ACTIONS

1. Under Code Civ. Proc. § 675, providing that an action to determine
adverse claims may be brought by any person against another
claiming an estate or interest in real property adverse to him,
an owner of a note secured by a trust deed may sue to quiet

title as against parties claiming title adverse to the trust deed.
Battelle v. Wolven, 87.

2. Where a shipment of nursery stock was accepted by the buyer on
the express understanding that he was not to pay therefor unless
the stock would prove to be as hardy as other varieties then grow-
ing on his premises, an action for breach of contract instituted
within 10 days after the delivery of the stock was prematurely
brought; it being impossible at that time to determine the rights
of the parties. Backus v. Erickson, 245.

3. Whether an action shall be dismissed with or without prejudice rests
in the discretion of the trial court. Cooke v. McQuarters, 361.

4. Under Rev. Code Cv. Proc. § 95, providing that when a complete
determination of a controversy cannot be had without the presence
of other parties the court must cause them to be brought in, the
maker of a note who is sued by an indorsee, and defends on the
ground that the note was without consideration, and that the
transfer to plaintiff was merely colorable and without considera-
tion, cannot compel the bringing in of the payee to answer a
counterclaim and cross-complaint seeking an accounting and other
equitable affirmative relief. Bankers' Nat. Bank v. Security Trust
Co., 418.

D. Where judgment for plaintiff, in an action to recover possession of
personal property, is assigned, the assignee is the real party in
interest entitled to sue on a redelivery bond, providing that its
obligations shall be performed by returning the property or pay-
ing its adjudged value. Odell v. Petty, Sheriff, et al. (Steele, In-
tervener), 532.

APPEAL

See Exceptions, Bills of; New Trial.

1. Where there is no preponderance of evidence against the findings
of the trial court, and the evidence justifies the court's inferences
therefrom, they are conclusive on appeal. Morris v. Reigel, 26.

2. Where an order granting a new trial did not specify the grounds
on which it was based, it will be affirmed on appeal, if any ground
on which the motion was made was sufficient to sustain the order.
Weller v. Hilderbrandt, 45.

3. Where the weight of the evidence or the credibility of the witnesses
is involved, or where the evidence on a material issue is so con-
flicting that different minds might reasonably draw different con-
clusions or inferences therefrom, it is error for the court to direct
a verdict. Id.

4. An error shown will be presumed prejudical, unless the appellate
court can clearly see that the appellant was not prejudiced thereby.
Id.

5. Where an order refusing a temporary injunction itself discloses that
no discretion was exercised, but that it was on the ground that
plaintiff had no cause of action, the rule that such order cannot
be reversed in the absence of abuse of discretion has no applica-
tion. Phenix Ins. Co., of Brooklyn, N. Y., et al., v. Perkins, Com-
missioner of Insurance, 59.