25 S.D. 454 | S.D. | 1910
This is an appeal from the circuit court of Moody county. Plaintiff, who is appellant here, commenced an action to recover the sum of $150 alleged to be due him upon a lease for rental of 80 acres of land. The ■ answer is a general denial, save as to plaintiff's ownership of the property, which is admitted. ,The record discloses that plaintiff is a resident of Tipton, Iowa, and that one C. F. Claussen, who resides in Moody county in the vicinity of the land in question, was the agent of the plaintiff, with -authority to lease and look after -the land in
In Smith v. Insurance Co., 21 S. D. 433, 113 N. W. 94, it is said: “Except under unusual circumstances a new trial will not be granted on the ground of newly discovered evidence which goes only to discredit or impeach a witness. Scheffer v. Corson, 5 S. D. 233, 38 N. W. 555; Axiom Mining Co. v. White, 10 S. D. 198, 72 N. W. 462.”
And in Ernster v. Christianson, 123 N. W. 711, this court said: “The evidence claimed to be newly discovered was simply cumulative, as the defendant himself had testified, and had been fully examined upon the issue presented, and if seems to be a well-'settled rule that a new trial will not be granted on the ground of newly discovered evidence which is merely cumulative, and which
We are therefore of opinion that the trial court did not err in denying plaintiff’s motion for a new trial. It is disclosed by the record that defendant had leased from the plaintiff, through his agent, Claussen, 160 acres of land, and had occupied and cultivated the same during the year preceding that for which the plaintiff claims to recover rent in this action. The plaintiff bases his claim in this action upon a new lease, covering only the east half of the same quarter section. It is also disclosed by the record that the dwelling house occupied by defendant under his former lease is situated upon the 80 acres alleged to be covered by the new lease, and that the defendant continued in the occupancy of the building upon this 80 acres of land for a period of about 70 daj's after the expiration of his former lease of the entire tract. Plaintiff seems to be under the impression that this occupancy of the leased' premises after the expiration of the former lease would operate as a renewal of the former lease. Plaintiff, however, does not base his right of recovery in this action upon the former lease, but upon the alleged new lease, covering only half of the premises embraced in the former lease, so that even were it held that the continued occupancy of the leased premises after the expiration of the former lease would operate in law as a renewal of that lease, yet the plaintiff could not recover in this action, for the. reason that he does not base his action upon the former lease, but upon an entirely new and distinct lease alleged to have been subsequently entered into between the plaintiff and the defendant.
It is also alleged as error that the court failed to instruct the jury as to the legal effect of this continued occupancy of the premises under the former lease. As we have seen, such an issue was wholly immaterial to the plaintiffs rights in this action, and, even if it were material, no request for an instructio'n was made by the plaintiff upon the trial, and for that reason the failure of the court to instruct could not be assigned as error in this court. In the case of Garrigan v. Kennedy et al., 19 S. D. 11, 101 N. W.
Finding no error in the record, the judgment and order of -the trial court are affirmed.