22 S.D. 95 | S.D. | 1908
This case was before us at a former term of this court, and an .opinion was filed dismissing- the appeal on the ground of duplicity. The opinion is reported in 21 S. D. 55, 109 N. W. 642. A petition for rehearing was filed, based up’on the following grounds: “No notice of the motion to dismiss the appeal was served on appellant or his counsel, as required by statute and rule 23 of this court, and respondent waived her right, if any she had¡ to move for a dismissal of the appeal prior to the submission of the case under rule 21.” The petition was granted, and the case is now before us on such rehearing.
An examination of the record discloses the fact that no notice of a motion to dismiss the appeal was served nor habtion made as required by rule 23 of this court, and it further appears from the record that the case was submitted at the April term, 1906, under rule 21, neither party appearing by their attorneys when the case was called for argument. .Assuming that there was a double appeal as claimed by the respondent, such double appeal constituted an irregularity only that might be waived by the respondent, and the same was waived by thé failure of respondent to serve notice of and malee a formal motion to dismiss the appeal. We are of the opinion, however, that there was no double appeal within the principle announced in the case of Hacket v. Gunderson, 1 S. D. 479, 47 N. W. 546, for the reason that it is disclosed by the record that a trial was had in the action, resulting in favor of the plaintiff; that a motion fot a new trial was made and gránted by the court, and thereupon a new trial was had resulting in a judgment in favor of the defendant; No appeal was taken from the Order granting a new trial within 6b days allowed by law, and the plaintiffs participated in the second trial. The appellants, therefore, having failed to appeal from the order granting a new trial withirt •the time prescribed by the statutes, their right to appeal from that
The contention of appellants that the order granting the new trial is reviewable upon the appeal from the second judgment and order denying a new trial, as an intermediate-order, is not tenable, as the order granting a new trial in no manner involved the merits or necessarily affected the judgment upon the -second trial, and therefore does not come within the provisions of section 463 of the Revised Code of Civil Procedure, providing that “upon appeal from a judgment * * * the Supreme Court may review any intermediate order or determination of the court which involve the merits and necessarily affect the judgment appearing upon the record transmitted or returned from the circuit court. * * It is quite clear, therefore, that this court should not have dismissed the apeal, and the judgment of the court in so dismissing it must be vacated and set aside and the opinion disaffirmed.
This brings us to the merits of the case as presented by the record upon the judgment in favor of the defendant and order denying a new trial. The action was instituted by the Ewing & Parker Company, as copartners, to- recover of Joseph Eunn the sum of $1,600 as a commission alleged to have been earned by them for finding a purchaser for the defendant’s farm, consisting of a half section of land situated in Hanson county. The defendant in effect denied each and every allegation of appellant’s complaint. The case was 'tried to a jury, and on the second trial a verdict was rendered in favor of the defendant. Subsequently to the trial the defendant Lunn died, and his widow was substituted as his executrix. It is claimed by the appellants who- have been
It is contended by the appellants that the land in question was listed by the appellants through their agent, Krier, and that the evidence of his agency was explicit and undisputed, and that, therefore, the court erred in refusing the following instruction requested by plaintiffs: “The undisputed evidence shows that Dominick Krier was the agent of Ewing & Parker Company on the 1st day of July, 1903, for the purpose of listing the .land for sale.” The court was clearly right in refusing to give this instruction, as the assumption on the part of the appellant that the evidence was undisputed is clearly not sustained by the record. Upon this question Joseph Eunn testified as follows: “He (Krier) asked if I wanted to sell my land, and I told him I had offered it for sale. He asked me how much I held it, at, and I told him $40 an acre. Pie said it would not sell for that; it wasn’t worth $40 an acre. * * * He told me he had five or six quarters listed north and west of Farmer, and had offered his own two- quarters for sale that day. I finally told him that if he would bring me down a buyer between that day and the 15th of September at $12,000 — one-half cash and the balance on time — I would pay to him $150 cash as soon as the first papers were made out and the first money paid down. * * * In that conversation he said nothing to me about' Ewing & Parker Eand Company; I never heard the name mentioned at that time.
It is further contended by the appellants that the court erred in refusing to give to the jury the second instruction requested by the plaintiffs, which is as follows: “No. 2. The undisputed evidence shows that Ewing & Parker Company found a purchaser for the land who was able, willing, and ready to buy the land, and it is for you to say whether such purchaser was willing, ready, and able to purchase on the terms and for the price at which, the defendant Eunn had listed the land with Ewing & Parker Company.” The court was clearly right in denying this instruction. The evidence was not only disputed as to whether Ewing & Parker Company found a purchaser for the land, but there was evidence tending to prove that no such purchaser was found by Ewing & Parker Company to take the land upon the terms stipulated by Eunn in his contract with Krier as testified to by him, which was, as he says, to be $6,000. cash and $6,000 on time, and the time was limited to September 15, 1903. Exhibit A purports to be articles of agreement made the 18th of September, 1903, between Ewing & Parker Company and' Charles G, Carlson for a. sale of th.e land to him at
The contention of the appellants that the questions submitted to the jury were upon undisputed facts is clearly untenable; as before stated, the claims of the respective parties in this action upon the evidence cannot be reconciled. The charge of the court is very lengthy, and it will not be necessary to set out the same :n this opinion, but it must suffice to say that the charge of the court was eminently fair, and presented the case to the jury in as favorable a light for the appellants as the law would warrant it in doing.
It is further contended by the appellants that the court erred in its charge to the jury as follows: “Now, gentlemen, the fact
It is disclosed by the record that the jury not only returned a general verdict, but also a special finding in answer to the following question: “Q. Did Mr. Lunn, in his contract with Krier, make the limit of the contract to September 15, 1903? A. Yes.” That finding is clearly supported by the evidence, and is conclusive upon the appellants, as it is not pretended by them that a purchaser was found by the Ewing & Parker Company before the 15th day
If is further contended by-appellants that the court erred in striking out the answer to certain evidence given by Krier. It appears from the record that while Mr. Krier was a witness- in behalf of the appellants he made' the following statement: “I had a conversation with Mr. Lunn the latter part of June, 1904. He came from Wisconsin and rode with me. He said he was back to Wisconsin; that there was quite a land boom there. I said, ‘Well, Mr. Bunn, you ought to have sold your land while you had a chance to.’ Q. What did he say? A. He -said, ‘I know it, and if I had had my way about it I would.’ ” A motion was made by the defendant to strike out the answer as incompetent and immaterial, and not in, any way referring to the matter in controversy, and not in any way affecting the particular contract alleged to have been made. The motion was granted and the plaintiffs excepted. It will be noticed that this conversation occurred several months subsequently to the making of the alleged contract between Krier and Lunn, and that it does not amount to an admission on the part of Lunn that the contract testified to by him as made with Krier was in any respect different from the contract as testified to by him. It neither tended to prove or disprove any of the issues involved in this action, and was therefore clearly irrelevant and immaterial, and was properly stricken out 'by the court.
One of the principal grounds relied upon on the motion for a new trial was the misconduct of the jury during the 'progress of
The learned attorney for appellant in his affidavit states “that said juror was intoxicated and under the influence of intoxicating liquor when he, as plaintiff’s attorney, made his closing argument to the jury, and while the court was delivering its charge to the jury, and when said case was submitted to the jury.” It thus appears by the evidence of the counsel that during the taking of the evidence, the arguments of counsel, and while the court was delivering its charge to the jury, the juror was under the influence of intoxicating liquor. It was the duty of the attorney for the appellants, therefore, to call the attention of the court to the condition of the juror and have him discharged or the case continued until the juror was in a condition to sit in the case as such, and, failing to call the attention of the court to the facts which were within his knowledge at the time, appellants cannot now be heard to question the conduct of the juror, and are deemed to have waived such misconduct. Where a party moves for a new trial upon thé ground of misconduct of the jury, the party must aver and show affirmatively that both he and his counsel were ignorant of the misconduct charged, until after the trial. Grantz v. City of Deadwood, 20 S. D. 495, 107 N. W. 832; Wynn v. Ry. Company, 91 Ga. 344, 17 S. E. 649; Fifth Avenue Savings Bank v. Cooper, 19
The judgment-of the circuit court and order denying a new trial are affirmed. *