Davies & Daniels Co. v. McKillip, 165 N.W. 380

Davies & Daniels Co. v. McKillip

165 N.W. 380 | S.D. | 1917

WHITING, J.

Action to recover on a promissory note. Judgment for plaintiff against one defendant, who has appealed.

[1] The plaintiff called both defendants as adverse witnesses, and proved the signatures to the note. As part of their testimony while so testifying for plaintiff these witnesses testified to the fact that the note had been materially altered after its execution. Without further testimony the note was received in evidence over objection. This ruling was erroneous, and, as plaintiff rested its ■case without further evidence, such error would have been prejudical if the defense bad also rested, and, upon such note wrongfully admitted, a verdict 'had been rendered in favor of plaintiff. But defendants did not rest their case, and afterwards evidence was received that rendered the note competent to go before the jury, and the error became nonprejudiicial.

[2] Appellant also assigns as error the ruling of the court admitting certain evidence over the objection that it was “irrelevant and immaterial, and not rebuttal.” The evidence received over this objection was clearly proper rebuttal. If it were to be conceded that, under the reply interposed, such evidence was irrelevant and immaterial to the issues raised, yet the mere objection that it was “irrelevant and immaterial” without calling the attention of the court to the reasons why it was considered *546irrelevant and immaterial was insufficient upon, which to base a claim of error; it being apparent that the reply could properly have been so amended, if need1 be, as to avoid the grounds of the objection if it had been specific, Merrill v. M. & St. L. Ry. Co., 27 S. D. 1, 129 N. W. 468.

[3] The only assignment of error really presenting any question of merit is one assigning as erroneous the instructions given by the trial court. The court instructed the jury that, if it found, the alteration was made with the consent of appellant, it should return a verdict in plaintiff’s favor, while if it found that the alteration was made without the consent of' appellant, it should return a verdict in appellant’s favor; and the court wholly failed to instruct as to which party 'had the burden of proof. No instruction as to burden of proof was requested! by either party; but we are not called upon to decide as to- the necessity of a request for an instruction, for the reason that it appears from the settled record that:

“At the close of the evidence and before argument, counsel for defendant stated to the court in substance that he thought defendant was entitled to the opening and closing argument on account of he having the burden of proof, which was agreed to by the court and defendant took the opening and| closing argument”

—and for the reason that it appears that plaintiff objected: to appellant’s having the opening and closing argument, which’ objection was overruled. Having taken the position that the 'burden, of proof was on her, appellant is in no position to complain that the court did not instruct the jury that the burden was upon plaintiff, even though, as a matter of law, the burden was upon plaintiff.

[4] Appellant insists that she should not be bound ■ by her request made to the court, which request was 'based' upon the theory that she had the burden of proof, because appellant contends-' that, through the rulings- of the court, the trial had proceeded upon that theory but against objections- raised by appellant. The record! does not -bear out such contention. If the trial was conducted on the theory that the burden of proof was on appellant when in fact it was on plaintiff, and appellant desired to claim error because of such fact, she should have seen to it that the *547settled record disclosed that she excepted to the theory that the burden was upon her, but that, inasmuch as the court had sen ¡ruled, she, for that reason, asked’ for the opening and the closing. This court must take the record as settled in the lower court to be a correct record of the proceedings. According to such record, the trial court merely adopted appellant’s views.

The judgment and1 order appealed from are affirmed.