13 S.D. 550 | S.D. | 1900
Some of the facts essential to a determination of this appeal from a judgment against sureties on a sheriff’s official bond, and an order overruling a motion for a new trial, are stated correctly by counsel for respondent as follows: “On the 4th day of June, 1894, George A. Knott, then sheriff
The first assignment of error relates to the denial of appellants’ motion to strike the case from the calendar for the reason that no notice of trial has been given or filed since the entry of the order granting appellants’ motion for a new trial. By this order the former judgment and verdict were vacated and swept away, and the case stood upon the calendar exactly as though no trial had ever taken place. 14 Enc. PI. & Prac. 936; Edwards v. Edwards, 22 Ill. 121; Hidden v. Jordan, 28 Cal. 301. Where a new trial has been granted, “the causéis in the same condition as if no judgment had been rendered, so that the action is in no sense new, but,.identically the original suit. The error is extirpatéd, and everything else is in statu quo.” And. Law Diet. All the parties, by serving timely notices of trial and filing notes of issue, indicating facts for the jury, made it obligatory for the clerk to place the cause upon the trial calendar for the December, 1898 term; and the granting of appellant’s motion, made in the same court, served to retain the case upon the calendar for a new trial. The statute expressly provides that “there need be but onenotice of trial,and one note of issue from either party, and the action must then remain on the calendar until disposed of. ” Comp. Laws, § 5034. Whether
Under the liberal rule adopted by this court, the amended compliant, which appellants answered and assailed for the first time at the trial, is-so amply sufficient in every particular that we deem it a waste of space to produce it here, and a waste of energy to discuss the assignments of error relating thereto. Sherwood v. City of Sioux Falls, 10. S. D. 405, 73 N. W. 913; Whitbeck v. Sees, 10 S. D. 417, 73 N. W. 915. After the county auditor, with whom the statute requires the bond
After respondent had been examined by her counsel concerning certain preliminary matters, and had identified and described certain articles of clothing and household furniture seized by the sheriff, the following question was propounded on cross examination: “Where did you get this property that you have described?” Upon the theory that the direct examination of the witness had not touched upon the question of title, and the assurance of her counsel that “the witness will again be upon the stand, and ready to answer that question, or any other that counsel may ask in relation to this or any other matter in controversy,” the court ruled as follows: “Objection sustained for the time being, but the court will permit witness to be recalled later upon that subject
The record and judgment roll in the case of this respondent against the sheriff are not subject to any of the objections urged by counsel for appellants; and the trial court was fully justified in admitting the same in evidence as prima facie proof, at least, of the liability of appellants as sureties on the official bond of that officer. Although the law- zealously protects sureties from the imposition of burdens beyond their undertaking, it is clear from the cases that courts are not disposed to resort to unwarranted indulgence or great nicety of construction in order to allow them to escape liability voluntarily assumed, in order to indemnify the public against the delinquencies or misconduct of a sheriff. While in many of the states judgments against such officers are held to be conclusive as to sureties, we think the judgment is only prima facie evidence against them, which may be overcome by competent proof; and such was the rule invoked by the trial court, and sustained by well considered authority. Fay v. Edmiston, 25 Kan. 439; City of Lowell v. Parker, 43 Am. Dec. 436; State v. Jennings, 14 Ohio St. 73; Norris v. Mersereau, 74 Mich. 687, 42 N. W. 153; Charles v. Hoskins, 14 Iowa, 471. The attachment by the sheriff of property not belonging to the debtor, but to respondent, was con
It is alleged in the answer of these appellants, and urged by their counsel, that this action is barred by the statute limiting to a period of three years the time within which an action may be brought against a sheriff, but such action was brought, and terminated in a judgment against that officer, within the time fixed by Section 4851 of the Compiled Laws for the commencement of the action, and on the 4th day of April, 1898, one day prior to commencing this action,- an execution previously issued upon that judgment was returned unsatisfied. Thesq sureties entered into a covenant to respond in damages for the nonperformance of their principal’s official functions, and the court very properly held that the foregoing section does not apply to an action-based upon an obligation of this character. An official bond is an obligation under which the sureties may, upon default of their principal, become liable to pay money to another, and in such event they are, within the statutory definition of the term, debtors, whether such liability is certain or-merely contingent. Comp. Laws, § 4651. “An action upon a contract, obligation or liability, express or implied,” must be commenced within six years. Id. § 4850.
A careful examination of all the remaining assignments of error relating to the rulings of the court upon questions of evidence discloses no-error. The point that the court modified an instruction proposed by appellants, and in such form gave it to the jury as coming from them, is not, as a matter of fact, sustained by the record; and, as a matter of law, the charge of the court to the jury properly covered every question in the case,