3 S.D. 199 | S.D. | 1892
This was an action to recover damages for breach of contract. Verdict and judgment for plaintiff. Defendant appeals. A motion was made in this court to dismiss the appeal upon the same grounds as those stated in the motion in Hawkins v. Hubbard, 2 S. D. 631, (decided by this court at its present term.) For the reasons stated in the opinion in that case the motion is denied.
A motion for a new trial was made in the court below, one of the grounds of which was “irregularities in the proceedings of the plaintiff and his attorney by which defendant was prevented from having a fair trial.” The alleged irregularities complained of were fully set out in an affidavit made by one of the counsel for defendant, the material parts of which are as follows: “That in the argument made by Joe Kirby, Esq., attorney for the plaintiff in said action at said trial, at the March term, 1891, the said Kirby, contrary to the objections of said defendant, commented at length upon the fact that said action had been commenced in 1886, and that defendant had made application for change of venue to other counties, and that the said Kirby in his argument, against the objections of the defendant, sought to arouse, and did arouse, the prejudice of the jury against the defendant; that said Kirby stated in his argument to the jury, in effect, that the defendant had purposely delayed the trial of this action from term to term, and had done so for the purpose of harassing and annoying the plaintiff, and that, in his evidence upon the stand the defendant had deliberately perjured himself. Affiant further says that previous to this action there had been other litigation between plaintiff and defendant, and that the said Kirby, in his argument aforesaid, commented upon the other litigation, and stated to the jury, in effect, contrary to the objections of defendant, that said litigation
The first question presented for our consideration, therefore,, is as to the proper practice to be pursued in bringing irregularities of the nature complained of before this court. Section 5088, Comp. Laws, provides that “the former verdict or other decision may be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: (1) Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion, by which either party was prevented from having a fair trial. * * *” This clause seems to be broad enough to include any irregularity or misconduct of an attorney who, for the purposes of the case, represents the party; and
It appears from the affidavit in this case that-counsel commented at length upon the fact that the action was commenced in' 1886, and followed it -by the statements that the defendant had procured a change.of venue, and that he had purposely delayed the trial of the action from term to term, in order to harass and annoy the plaintiff. Such statements were well calculated to prejudice the jury against the defendant, and influence their verdict Still more objectionable was the statement of counsel that there had been other litigation between the same parties concerning substantially the same matters involved in this action, and that in such litigation a verdict had been rendered for the plaintiff. The learned counsel for the plaintiff, evidently in his zeal for his client, in these various statements overlooked those great principles of: professional ethics that should govern and control counsel in the argument of their causes before a jury. Counsel, as officers of the court, should never, in their zeal for their clients, so far forget; the duty they owe to the court as to improperly attempt to prejudice or influence the jury in the discharge of their duties, by bringing before them in argument matters not in evidence in the case; and it is the duty of trial courts to see that no such improper statements are permitted to be made to the jury. In Brown v. Swineford, 44 Wis. 282, Mr. Chief Justice Ryan, in an opinion reversing a judgment for the misconduct of an attorney in his argument, says: “Doubtless the circuit court can, as it did in this case, charge the jury to disregard all statements of fact not in evidence. But it is not so certain that a jury will do so. Verdicts are too often found against evidence and without evidence, to-, warrant so great a reliance on the discrimination of juries; and,: without notes of the evidence; it may be often difficult for juries
We recognize the rule that the conduct of the trial and the line of argument counsel are permitted to pursue rests largely in the discretion of the trial court; that the granting or refusing of a new trial for - irregularities of parties or attorneys, or the misconduct of the attorney in his argument, rests largely in the discretion of such court. We further recognize the fact that this court will not reverse the decision of the court below on a motion