15 S.D. 318 | S.D. | 1902
In Coughran v. Sundback, 13 S. D. 115, 82 N. W. 507, 79 Am. St. Rep. 886, the controlling facts are fully stated, and need not be repeated here. As the undertaking made the basis of both that action and this was held insufficient as a statutory bond, though enforceable as a common-law obligation, the legal effect of the instrument is not involved on this appeal by the sureties from a judgment in favor of the plaintiff and an order overruling a motion for a new trial. Over the objection of counsel for appellants, respondent was permitted to introduce the testimony of his attorney in the original action to the effect that such attorney proposed to issue execution before the undertaking under consideration was given, and would have done so immediately had not counsel for the judgment debtor and the attorney for appellants in this action prevailed upon him to forbear by repeated assurances that he, would promptly take an appeal, and furnish a good and sufficient stay bond, and that, relying upon such agreement and the undertaking in suit, no execution was issued pending the appeal to this court. While the foregoing testimony is squarely controverted by counsel for appellants, and the subject to which it relates was never brought to the knowledge of these appealing sureties, and therefore not binding upon them, it was admissible for the purpose of showing how the matter was regarded by counsel, and that execution was actually stayed by an undertaking treated as wholly sufficient. As stated in our former opinion: “No steps were taken to enforce the judgment prior to the giving of the undertaking in which the sureties justified in the sum of $2,000, for the evident purpose of securing payment upon default of the amount found to be the value of the property, together with costs and disbursements. That such was the import of the undertaking, and that a stay had been effected, was the view that governed all subse
At the opening of the trial the absence of W. C. Hollister, one of the appellants, was suggested, with the announcement that a continuance would be applied for on the part of the defendants unless plaintiff would admit that, if present, he would testify that at the time of signing he was informed that it was simply a cost