Meeker v. City of Madison

164 N.W. 974 | S.D. | 1917

OATES, P. J.

[1] This- is an appeal from a judgment and order denying .a new trial entered upon a retrial of the cause which was before us in 36 S. D. 256, 154 N. W. 648. Reference is made to that opinion for the facts. The principal -question now argued is in regard to.the competency of plaintiff Meeker’s testimony as to admissions made by one Anderson to him to the effect -that in relaying the sewer pipe the city, of M-adlson used a mortar consisting of one part -of cement to one part of sand, instead of one part of cement to one and one half parts of sand. These admissions were made during the progress of the work by Anderson whoi -was employed by the city to do the work of putting the mortar into- the pipe. ends. No objection was taken to this testimony; consequently the question is not properly before us. The only obj ect-ion offered was in regard to-' what Meeker told Anderson, and that -objection is not argued.

[2] Error is assigned' in regard to- the admission of the following testimony -of Johnson as to the conversation between Meeker and Anderson:

“A. Mr. Meeker said to- him, 'You are using too much cement.’ Apparently that is the way they spoke it in a way. Anyway, Mr. Anderson told Mr., Meeker that he was not the boss and for him to keep out of it. Those are his words as near as I can remember them.”

Clearly no prejudice could result to defendant from the admission of that testimony, even if 'it were not properly admissible.

[3] Another alleged error is argued in the brief, viz. -the absence of the trial judge from the courtroom during the arguments of counsel; ‘but as this was not assigned as erro-r upon appeal, it is not before us for determination. Williams Bros. Lumber Co. v. Kelly, 23 S. D. 582, 122 N. W. 646; McCall v. Crocker, 35 S. D. 600, 153 N. W. 761; Johnson v. Sayer, 36 S. D. 15, 153 N. W. 908.

The judgment and order • appealed from are affirmed.