21 S.D. 357 | S.D. | 1907
This proceeding was commenced in December, 1906, by the service of a notice of contest, wherein the plaintiff alleged in substance that he was elected county judge of Hughes comity at the general election of 1904; that he duly qualified and entered upon the discharge of the duties of that office; that the defendant was duly elected to the same office at the general election of 1906, for the term beginning in, January, 1907; that a certificate of election was duly issued to the defendant; that the defendant
Plaintiff’s objection to the introduction of any testimony under the answer was properly overruled. The notice of contest disclosed that defendant was entitled to the office unless he was under the constitutional age when' elected. He was not required to plead facts already alleged by the plaintiff, and which were to be taken as true if not controverted by his answer.
Mr. and Mrs. S. F. Radcliff having testified on behalf of the plaintiff that they knew defendant was bom in November, 1882, because they were married February 6, 1882, their first child was bora November 13, 1882, they were neighbors of and well acquainted with defendant’s parents, and their first child was born a week or ten days before the birth of the defendant, the plaintiff offered in evidence what purported to be a certificate showing-that Radcliff’s were married on the date stated in their testimony. To this offer the defendant objected, and the objection was sustained. Assuming that the proper foundation was laid, and that the certificate was admissible in corroboration of the Radcliff’s testimony, the exclusion of the certificate did not constitute reversible error. It was the date of defendant’s birth,, not the date of the Radcliff marriage, which was in issue. The latter date was only a collateral circumstance in itself immaterial, which was established by other competent, uncontradicted evidence. An error, if any, in excluding evidence is without prejudice where the fact which it tends to prove is established by other competent evidence. Muller v. Flavin, 13 S. D. 595, 83 N. W. 687; Ochsenreiter v. Elevator Co., 11 S. D. 91, 75 N. W. 822; Distad v. Shanklin, 15 S. D. 509, 90
Mrs. Charles Brandt, having stated in her deposition taken and read by the defendant that she knew defendant’s parents and that defendant was born in 1881, was asked: “What time in the year?” and answered: “So far as I remember, just as Mrs. Moore said.” Plaintiff moved to- strike out this answer as hearsay, and contends the court erred in overruling his motion. The contention is clearly untenable. Mrs. Moore, in giving her deposition at the same time and place, had stated that the defendant was born in the early part of the winter of 1881. Mrs. Brandt merely referred to Mrs. Moore’s statement and made it her own. It was the same as if,' her attention having been called to a letter or other writing, she had said the statement therein was true. She was not testifying to what Mrs. Moore had told her, but to a fact within her own knowledge, adopting Mrs. Moore’s language in place of using her own.
It is contended the court erred in allowing Albert W. Movius, whose deposition was taken and read by defendant, to testify that while living at Big Stone, Dakota Territory, now South Dakota, he held the office of justice of the peace, and as such performed a marriage ceremony for defendant’s parents in the first days of Febtuary, 1881, for the reason that the record of his election or appointment to that office was the best evidence. The contention cannot be sustained. Neither the legality of the witness’ office nor the validity of the marriage, if one was solemnized, was in issue. The only material matter was whether the witness, purporting to act as a justice of the peace, in fact performed the marriage ceremony at the time and place stated in his testimony. Even if he had not been a justice, either de jure or de facto, the marriage would have been valid, provided the contracting parties acted in
The contention that the depositions of Mrs. Brandt, Frank Thorndyke, and Gus Yonker, taken and read by defendant, should have been suppressed on the ground that no oath was administered to the witnesses, is not tenable. In the first place, it does not appear that the plaintiff, who was represented by counsel at the talcing of depositions, made any objection to- the manner in which the oath was administered; and, in the second place, the trial court was justified in finding from the evidence touching this matter that the witnesses were in fact sworn by the notary, though the form of the oath was dictated by the defendant, who- was personally present, the notary being unfamiliar with court proceedings.
Mrs. Brandt gave two depositions. In the first, taken and read bj the defendant, she said the defendant was born early in'the winter of 1881. In the second, taken and read by the plaintiff, she said he was born one year later; that she made a mistake in giving her first deposition, and fully explained the circumstances which she claimed had led to the discovery of her mistake. Such being the condition of her testimony, the plaintiff offered to- read in rebuttal from the deposition of A. M. Morrill, an attorney employed by him in taking depositions, certain conversations between Morrill and Mrs. Brandt occurring after her first deposition was taken, in which she gave the same explanation regarding the discovery
When Mrs. Brandt’s second deposition was taken she produced a Bible which purported to contain a record of her daughter’s birth. As we understand the bill of exceptions, this record was offered in evidence when her deposition was taken, but was not returned with the deposition or offered on the trial. One of the objections hade to' its- introduction when the deposition was taken was to the effect that the entry appeared to have been altered. S. F. Radcliff, having been called by the plaintiff in rebuttal, stated that he saw this bible at Mrs. Brandt’s residence in January, 1907. He was then asked this question: “Did you see any entry in that Bible concerning the name of Anna Brandt? If so, state what entry you saw there.” This was objected to- as not proper rebuttal, not the best evidence, and as, seeking to show an instrument which plaintiff has offered in evidence and failed to produce as an exhibit. The objection was properly sustained. The entry itself was the best evidence and should have been produced, because plaintiff was in position to produce it, and knew that the defendant claimed that it appeared to have been changed. For the same reasons the court did not err in refusing to allow the same witness to express an opinion as to -the character of the entry with reference to- clearness.
The contention that the court committed reversible error in allowing testimony to the effect that the plaintiff was a candidate for the office in question and defeated at the general election of 1906 is wholly without merit. Assuming the fact of plaintiff’s
It was next contended that the evidence was insufficient to justify the decision. The findings of a trial court on disputed questions of fact are always presumptively right, and though, under our statute, not as controlling upon this court as the verdict of a jury, must stand, unless the evidence clearly preponderates against them. Feldman v. Trumbower, 7 S. D. 408, 64 N. W. 189; Randall v. Burk Tp., 4 S. D. 337, 57 N. W. 4; Reid v. Kellogg, 8 S. D. 596, 67 N. W. 687; Webster v. White, 8 S. D. 479, 66 N. W. 1145; McKenna v. Whittaker, 9 S. D. 442, 69 N. W. 587; Hulst v. Association, 9 S. D. 144, 68 N. W. 200; Growing v. Machine Co.. 12 S. D. 127, 80 N. W. 176; McGray v. Elevator Co., 16 S. D. 109, 91 N. W. 457; Henry v. Taylor, 16 S. D. 424, 93 N. W. 641; Dodson v. Crocker, 16 S. D. 481, 94 N. W. 391; Wood v. Mining & Milling Co., 20 S. D. 161, 105 N. W. 101; Lee v. Dwyer, 20 S. D. 464, 107 N. W. 674.
The state and school census records introduced by the plaintiff were entitled to no consideration whatever, because of the manner in which the information they purported to contain was obtained. Mrs. Brandt’s confessed mistake and plaintiff’s failure to produce the original entry in her Bible greatly impaired, if it did not totally destroy, the weight of her testimony. Defendant’s declarations regarding his age disclosed by Mrs Hutchinson and her daughter, taken in connection with defendant’s explanations and all the evidence, merely tended to prove that the family tradition was uncertain on the subject, and that defendant had frequently made conflicting statements regarding the same to persons to whom it was a matter of no consequence.
Coming now to the evidence which-merited serious attention: On behalf of the plaintiff Mrs. Eastman .testified that she was intimately acquainted and associated with defendant’s • mother during June and July, 1883, and that defendant was then seven or eight months old. George Spicer testified that he resided in Big Stone
Finally, it is urged there was error in refusing a new trial on the ground of newly discovered evidence. Applications for new trials on this ground are looked upon with distrust and disfavor. Heyrock v. McKenzie, 8 N. D. 601, 80 N. W. 762; Nelson v. Carlson, 54 Minn. 94, 55 N. W. 821. The statute requires such evidence to be material to the party making the application for a new trial, and such as the applicant could not, with reasonable diligence have discovered and produced at the trial. Rev. Code Civ. 'Proc. § 301. It is the policy of the law to require diligence in securing and presenting evidence when a case is tried. Litigation should not continue indefinitely. Especially is this true of an- election contest which the statute íequires shall be speedily determined. Demmon v. Mullen, 6 S. D. 554, 62 N. W. 380; Murray v. Whitmore, 9 S. D. 288, 68 N. W. 745. A new trial should be granted on the ground stated only where the newly discovered evidence is “material to the party making the application” — only when it is of such character as will probably change the result of the former trial (Demmon v. Mullen, supra; Wilson v. Seaman, 15 S. D. 103; Heyrock v. McKenzie, supra; Braithwaite v. Aiken, 2 N. D. 57, 49 N. W. 419), and the denial of such an application, where the showing as to diligence or materiality of -the newly discovered evidence is challenged, involves an exercise of discretion which cannot be disturbed in the absence of manifest abuse (Daley v. Forsythe, 10 S. D. 464, 74 N. W. 201; Wilson v. Seaman, supra; Heyrock v. McKenzie, supra). It appears from the plaintiff’s affidavit that he spent three weeks at Milbank, S. D., and Ortonville, Minn., looking for evidence; that he employed several attorneys to- assist him, and that their combined efforts failed to- discover the witnesses Alexander Meadows, Zachary T. Russell, and Belle Faber, now residents of Minneapolis, until after the trial. It is asserted that, if rbe cause should be retried, Russell would testify that he was
The judgment and order appealed from are affirmed.