18 S.D. 608 | S.D. | 1904
This case was before us on a former appeal, and was reversed for the reasons stated in the opinion, -which is reported in 14 S. D. 394, 85 N. W. 1002. The action is one in claim and delivery to recover the possession of a young bay horse claimed by the plaintiff, and which is also claimed by the defendants. The identity of the horse was the only question in issue. The plaintiff claimed that he owned the dam and sire of the colt when the colt was foaled; that the dam was a flea-bitten colored gray mare, and the sire a
' The principal question presented is as to the admissibility of certain evidence introduced on the part of the defendants. On the retrial a number of witnesses were introduced on the part of the defendants, and their evidence admitted over the objection of appellant, and, as the questions and answers were very similar, it will only be necessary to give the testimony of two of the witnesses as illustrating the nature of the evidence admitted and to which exceptions were taken. Albert Dryden, being sworn on behalf of the defendants, and having testified that he had seen the horse in controversy, and knew the stallion Kay, and that he was acquainted with divers colts of the stallion Kay, the stallion having been bred for a number of years by his brother, was asked the following question: “Now, from the acquaintance you have had with this stallion Kay and with his colts generally, and the examination you made of the horse in controversy, I will ask you to state what is your opinion as to this horse in controversy being a colt sired by the horse Kay;” to which he answered, “I would say that he was.” Nat Dryden, a witness on behalf of the defendants, having testified that he had experience in the handling of horses for many years, that he had owned and bred for a,number of years the stallion Kay, that he had seen a great many of his colts, that he had seen the gray stallion and flea-bitten
• It is further contended that the court erred in admitting more than three witnesses on the part of the defendants as to the identity of the horse in controversy, as the court had made a rule limiting the number of witnesses upon this question to three witnesses on a side; but, so far as the record discloses, we cannot say that the court abused its discretion in permitting defendants to examine more than three witnesses!
These views lead to the conclusion that the court committed no error in admitting the testimony excepted to, and the judgment of the court and order denying a new trial are therefore affirmed.