10 S.D. 466 | S.D. | 1898
Lead Opinion
By amending the original summons and complaint pursuant to an order of court, defendant Stebbins was made a party to this action, instituted to recover certain sums of money aggregating §7,065.83, exclusive of interest, which it is alleged plaintiff loaned defendants, Fox, Guild, Bullock, and Stebbins, as co-partners engaged in numerous business ventures under various titles designated. After personal service of the summons upon the defendant Stebbins was vacated and set aside for good cause shown, service upon him was obtained by attachment and publication; and in default of an answer or any appearance upon his part, a trial of the cause resulted in a dismissal of the complaint as to the defendant Guild, upon the ground of the insufficiency of the evidence and a diragreement of the jury as to the issues raised by the answers of his co-defendants. Later, by leave of court, the defendant Siebbins, answering, denied every allegation of the complaint except plaintiff’s corporate existence, and, when the case was again
The death of Alvin Fox being suggested at the trial, and the absence of Daniel C. Baker from the jurisdiction of the court being shown, a longhand transcript of their testimony as adduced at the former trial on plaintiffs behalf, and duly certified by the circuit court reporter to be a correct transcript of his shorthand notes of their evidence, was offered in support of the complaint, and admitted in evidence over the objection of counsel for appellants that the testimony of a witness taken on a former trial is inadmissible on any reported identification of the stenographer, and can only be admitted upon the competent testimony of a witness called to the stand, who heard it when given.” The objection was properly overruled. By Chapter 87 of the Laws of 1893 the judge is authorized to direct the court reporter to ‘ ‘make out and file with the clerk of the court a certified transcript of his shorthand notes in longhand. * * * Such reporter shall on the request of either party in a civil or criminal case, make out and certify such transcript and deliver the same to the party desiring it, on paymefit of his fees at the rate of ten cents per folio, and such transcript when certified by the reporter to be a correct transcript of his notes of the evidence, proceedings and rulings, shall be prima facie evidence of the testimony given and of the rulings and decisions of the court and of the proceedings had upon the trial.” The theory upon which courts admit such testimony in the absence of a statute like ours, authorizing the practice, is that stenographic reporters, charged with the duty of taking down all the testimony of the witnesses, together with the rulings of the court thereon, are reliable agencies, whose transcripts are authentic, and in case of subsequent absence or death of a witness, ,are of great value, and oftentimes the best evidence of which
An objection not made when these transcripts were offered in evidence, and which, upon the theory of excusable neglect, was urged as an additional ground for a new trial is ‘ ‘that appellant was not a party to the former action,” but, as we view the record, the position is not justified, and the matter being addressed to the sound discretion of the trial court, which was not in that respect abused, the point requires no further consideration. Grant v. Grant, 6 S. D. 147, 60 N. W. 743; Pettigrew v. City of Sioux Falls, 5 S. D. 646, 60 N. W. 27; Longley v. Daly, 1 S. D. 257, 46 N. W. 247; Gaines v. White, 1 S. D. 434, 47 S. W. 524.
Upon information and belief it is, in substance, alleged in the amended complaint that between the 5th day of September, 1883, and the 31st day of January, 1887, the defendants, Fox, Guild, Bullock, and Stebbins, as co-partners engaged in various enterprises under as many different firm names, borrowed from plaintiff the money made the subject of this suit, and concerning which the witness Fox testified, in part, that from 1881 to 1887, he was cashier of the plaintiff bank; that appellant was a director, acting either as president or vice president, during the period within which the money was procured to promote the numerous ventures which the defendants had undertaken in the names of the Philadelphia Coal Company and the Deadwood & Redwater Valley Railway Company, corporations organized for purposes suggested by their respective names. In support of
Concurrence Opinion
(concurring). The motion to direct a verdict for defendant Stebbins was, I think properly denied, but for other reasons the judgment should be reversed, and a new trial ordered.