3 S.D. 134 | S.D. | 1892
Plaintiff and respondent claimed to be the owner and in possession of two certain horses, which defendant and appellant, as sheriff, seized under execution against respondent. They were claimed by appellant as exempt, and steps were taken by him to establish such claim under the statute, and it is not contended but that the provisions of such statute were sufficiently followed. The plaintiff recovered judgment, and the defendant appeals. At the opening of the trial defendant objected to the introduction of any evidence by the plaintiff, because the facts stated in the complaint did not constitute a cause of action, it being contended in support of such objection that, although demand for the property was alleged to have been made by plaintiff, it did not appear that such demand was made after his claim of exemption had been made; that until such claim was established by plaintiff by pursuance of the statutory proceedings, the defendant was in rightful possession, so that the time of the demand and refusal was material to appear in the complaint. We do not think this objection can be maintained against this complaint. The complaint alleges that, within the time allowed by statute after the levy, the plaintiff prepared, subscribed, verified,
It is further argued by appellant that the court erred in the admission of testimony as to the value of the property in controversy. A witness for the defendant, Mr. Fitz, had in his direct examination testified as to the value of the horses, and also that he had formerly owned them, and had sold them about a year before. On
Error is also alleged in that the court allowed the defendant to ask, on his cross-examination, another witness who was called by plaintiff to prove the value of the horses, if he was a relative of Mr. Fitz, the witness whose testimony is last referred to. There was no error here. It'is always allowable, on cross-examination, to ask any witness as to his .relation to the subject-matter of his testimony, or to the parties whose interests are to be affected by it. This is one of the facts which the jury is entitled to, and ordinarily will take into account, in determining the weight which ought to be given to the testimony of any witness.
Finally, it is urged that the court erred in instructing the jury that, if they found the evidence conflicting, it was their duty to harmonize it'if possible. Appellant insists that the court might