23 S.D. 38 | S.D. | 1909
This is an appeal from the judgment for plaintiff in the trial court and from the order denying a new trial. The cause was tried to a jury and was an action upon an open account for money loaned .by plaintiff to one Wm. H. A. Kroeger, of whose estate the defendant was executrix. The complaint set forth that .prior to 1890 plaintiff had loaned said Kroeger a large sum of money, that he had made payment írom time to time, and that abou,t December x, 1890, an accounting was had upon which it was agreed that “$600 or thereabouts” remained due. Further payments were made from time to time, the last under date of October 1, 1902; these payments aggregating $25. Then followed allegations of death of Kroeger, appointing executrix, notice to creditors, presenting claim, rejection thereof, etc., and demand was made for judgment for $575 and interest at 7 per cent, from December 1, 1890. Defendant, admitting death of Kroeger and her appointment as executrix, made a general denial of other allega tions and plead statute of limitations. Upon the trial all allegations of complaint regarding notice to creditors, presenting claim, rejection thereof, etc., were admitted, leaving only the question of whether an indebtedness ever existed against deceased in favor of plaintiff, and the statute of limitations.
Plaintiff was a witness in her own behalf, and after testifying to being acquainted with the deceased at Elkhart, Ind., back about 1879, she was asked: “While he was there, did you have any business transaction with him?” Defendant objected on the ground that the question was incompetent, calling for a transaction with or statement by the deceased; the witness being a party to the action. The objection was overruled, exception taken, and witness answered, “Yes.” No evidence as to the nature of the transaction was sought from this witness. This ruling is assigned as error. Without determining whether the .court’s ruling was ¡correct, we do not think it amounted, in any case, to reversible error for reasons hereinafter stated.
The second matter urged as error was the ruling of the court refusing to strike out the evidence of witness T. H. Gaffney, who, on behalf of his mother, the plaintiff, had testified that deceased had made a payment to-his mother of $25 at about March, 1902,
The third ruling complained of as error occurred during the examination of the wife of T. H. Gaffney. In answer to a question, and after making statements that were responsive, she started to testify concerning statements made by deceased at tint, March meeting above spoken of. This was objected to as not responsive, and it clearly was not responsive to question asked her. The court overruled obj ection, exception was taken and witness went on to relate what deceased said at that time. All of the facts testified to were material, and, if in response to proper questions, would certainly have been admissible. No motion to strike out the testimony was made, and this court certainly should not reverse the
The fourth claim of error is because, when the testimony was closed, the court, against the motion of defendant, refused to strike out all parol testimony as to acknowledgment of the debt by the deceased. There certainly was no error in this ruling. The evidence along this line was offered merely to establish the fact that an indebtedness had existed, and that, when payment was made thereon, it was admitted that it. was on the indebtedness in question. There was no claim that by parol the deceased had acknowledged the debt and taken it out of the statute, but the whole trial, including very specific' instructions, was on the theory that defendant, as executrix, if liable at -all, was so liable because a part payment was made on or about March 20, 1902, under circumstances showing that the payment was made on the debt in question with an intention of renewing such indebtedness, and the oral testimony received was all competent either as showing the original indebtedness, or as showing that when payment was- made in March, 1902, the deceased recognized that the payment was only a part payment of this larger indebtedness.
The fifth claim of error goes to the question of the sufficiency of the evidence to support a verdict when plaintiff’s testimon)-closed and defendant asked for directed verdict, which motion for verdict was renewed at close of all evidence. It is unnecessary to review all the evidence, as it would serve no useful purpose; but we think that the evidence of the son of plaintiff and his wife, if same was believed by the jury — and it must have been, or under the instructions of the court their verdict would necessarily have been for defendant — fully supported the verdict, as it certainly tended to show an old indebtedness, that payment was made thereon in .spring of 1902, and that it was made with full understanding that it was a part payment of this old debt, the balance of said old debt being admitted by deceased at the time he made the payment; and, .tending to prove these things, 'if believed, it removed the bar of the statute of limitations.
In closing we would say that the only evidence offered by the defense was an attempt to impeach plaintiff’s son and his wife by showing that deceased could not. have met them in March, 1902, as they claimed. Under the instructions of the court the jury had to believe these two witnesses to reach their verdict. If they believed them on points wherein there was evidence that tended to impeach them, then certainly the jury are presumed to have fully believed them dn matters in which they were not disputed. The .son gave considerable testimony to show that there had been for years this debt due from deceased to his mother, and therefore the bare statement by her that she had a transaction with deceased certainly is not prejudicial error, even if not strictly proper evidence under our Code.
For the reasons herein given the judgment of the trial court and order refusing a new trial are affirmed.