20 S.D. 80 | S.D. | 1905
This is an appeal by the plaintiff from ah order granting a new trial. This action was instituted by the plaintiff to recover from the defendant the sum of $153.65 and interest, being one-half of the loss incurred in the purchase, shipment and sale of a certain flock of sheep, purchased, as claimed by the plaintiff, in pursuance of an agreement made between himself and the defendant whereby the profits or losses of said transaction were to be shared equally between them. The defendant in his answer admitted the purchase, shipment and sale of these sheep by the plaintiff, and admitted that the loss incurred amounted to $307.31, but denied that the transaction was a partnership transaction, and denied that he was a party to the same. The defendant also alleged in his answer that the sheep were, at the time of the purchase and shipment, affected with scab, and that he and the plaintiff both knew them to be so affected, and by reason thereof the shipment of said sheep was unlawful, and that, if he had in fact become a party to such a contract, it was void as against public policy. The action was tried to a jury in 1903, and a verdict returned in favor of the plaintiff, and on motion of the defendant a new trial was granted. The second trial again resulted in a verdict for the paintiff, but, before the mo
As will be observed, neither Judge Whiting nor Judge Marquis presided at the trial of the case, and hence the presumption ordinarily applicable to trial courts exercising their discretion in granting or refusing a new trial has no application to this case. The principle to be applied in such a case is laid down by this court in Sands v. Cruikshank, 15 S. D. 146, 87 N. W. 589, and approved in Tyler v. Haggart, 19 S. D. 167, 102 N. W. 682. In the latter case this court says: “The order for a new trial, having been made by Judge McCoy, who took no part in the trial of the case, does not carry with it the presumption usually connected with such an order, namely, that the ruling of the trial court in granting or denying the motion would only be' reversed in case of an abuse of the court’s discretion ; and the principle to be applied to such a case is thus stated by this court in Sands v. Cruikshank, 15 S. D. 146, 87 N. W. 590, as follows: ‘The reason of the rule is that one who has observed the appearance and demeanor of witnesses is in a better position to intelligently weigh the oral evidence than one who merely reads the abstract of it as preserved in a bill of exceptions. * * * In this case the judge who granted defendant’s application did not preside at the trial, to .whom the record was as cold and lifeless as it is to us. * * j-jg cannot pe presumed to have reviewed the record from any better position than that occupied by the judges of this court. His decision should be given no greater force or effect than the opinion of an appellate judge.’ ”
We therefore express nq opinion upon the merits of the case, further than to say that we discover no error in'the order made by the circuit court, and the order of that court, is affirmed.