18 S.D. 262 | S.D. | 1904
Payment in full was relied upon as a complete defense to this action on a promissory note of $360 executed by the defendants to D. Romberg or order, and thereafter transferred by endorsement to plaintiff. Upon conflicting testimony, the jury returned a general verdict in favor of the defendants, and judgment was accordingly entered. Plaintiff moved for a new trial on a bill of exceptions duly settled, and containing specifications as to the insufficiency of the evidence, and errors of law occurring at the trial, and the defendants have appealed from an order granting a new trial.
Confessedly, D. Romberg and the defendants are the only persons having full knowledge of the facts, and the record discloses a substantial conflict in their testimony relative to the question of payment. According to the testimony of Michael and Catharine Dinneen, they never paid any part of the indebtedness mentioned in the complaint to any one but D. Romberg, and he swears positively that they never paid anything on account of the promissory note in controversy.
Whether the new trial was granted because the judge found the evidence insufficient to sustain the verdict, or was convinced that prejudicial errors of law had occurred at the trial, does not appear, yet the order appealed from must be sustained if within the proper exercise of judicial discretion. Although we have carefully examined the entire record, no abuse of the discretionary power of the trial judge has been discovered, and we deem it unnecessary at this time to decide points urged in support of the contention that prejudicial errors of law occurred at the trial.
The order appealed from is affirmed.