10 S.D. 228 | S.D. | 1897
In 1885, defendant resided at Plandreau, Moody county, Dak., and was engaged in business as an insurance, real estate and loan agent. The plaintiff desired to ne
premiums, and agreed with respondent to write the insurance policies. Defendant denies that any agreement was made by him to effect insurance, or that any moneys were retained by him for that purpose. Upon this question the evidence is conflicting, and it is practically the one question of fact at issue in the case. In January, 1886, the house situated upon the land covered by the mortgage was totally destroyed by fire. In March, 1886, plaintiff brought this action, alleging that defendant had contracted with him to procure him a policy of insurance of $250 upon the building which was burned, that he had wrongfully neglected to procure such policy, and laying damages at $250, with interest, etc. The answer of appellant set up the making of the loan with Nellie D. Pettigrew, and denied that he had ever contracted to procure the insurance. An application was made in 1887 for a change of venue. A change was granted to Turner county, but, on account of misunderstanding the terms of the order- granting the change, it was never fully complied with, and plaintiff obtained an order sending the case back again for trial to Moody county. In 1888 .the case was tried in Moody county, and resulted in a mistrial. At the next term of court after the mistrial, a second applica
One of the statutory grounds designated in defendants notice of intention to move for a new trial is “irregularity in the proceedings of the attorney for plaintiff upon the trial, by which defendant was prevented from having a fair trial. ” In the opening statement of plaintiff’s counsel, in examination of the jury, certain matters were referred to which were claimed to he objectionable by defendant’s counsel, and the stenographer was requested to take down further remarks of counsel. “Mr. Prank R. Aikens (attorney for defendant): We except to remarks of counsel in stating to the jury, upon their examination, the result of this case upon its former trial. The Court: The objection is sustained. Go ahead wfith the case. Mr. Kirby (attorney for plaintiff): The objection is made for the purpose of interrupting in stating the case to the jury, and has always been tried before at this stage of the case. The