195 N.W. 442 | S.D. | 1923
This is an action for damages for the alienation .of the affections of plaintiff’s -wife. Plaintiff recovered judgment. The trial court granted a new trial. This appeal is by plaintiff from the order granting it.
Pursuant to trial courts rule 30, the court made an order in which it was recited that a new trial was granted upon the fololwing ground, viz:
“Newly discovered evidence material to the defendant and which said defendant could not with reasonable diligence have discovered and produced at the trial, as showln by the affidavits served and filed by the defendant. That the affidavits of Abner J. Mosier, Dennis Spillane, and Smith Garratt show the testimony of the witness Romauld Luzon for the plaintitff at the trial to have been false, and that the other affidavits submitted by the plaintiff show that new> evidence can be procured at another trial which would contradict and rebut in many particulars the testimony of the plaintiff and his claims as to his 'own attitude of the relation with his wife, and as to the conduct of the defendant. That such testimony would be the testimony of disinterested witnesses and would corroborate the testimony of plaintiff’s wife that the controlling cause of the separation was the conduct of the plaintiff himself towards his wife. That in the judgment of the court the defendant is entitled to this new, evidence in his defense, and that the same would probably produce a different result in another trial.”
It is urged that the motion for new trial was not made before the close of the term- next succeeding that at which the trial was had. Upon .this objection being made before the trial court at the time of the hearing of the motion, that court caused the record to show that the succeeding term of court 'had not been closed at the time the motion was made.
It will be so ordered.
Note. — Reported in 195 N. W. 442. See, Headnote (1), American Key-Numbered Digest, New trial, Key-No. 117(3), 29 Cyc. 929 (1924 Anno.); (2) New .trial, Key-No. 140(2), 29 Cyc. 1000 (1924 Anno.); (3) New trial, Key-No. 99, 29 Cyc. 1009; (4) Appeal and error, Key-No. 977(3), 4 C. J. Sec. 2817,