13 S.D. 18 | S.D. | 1900
This is an appeal from an order overruling a motion to vacate a judgment entered upon a retrial which took place on the 28th day of Febi’uary, 1899, in an action to recover Hie amount of a promissory note executed by appellant to Moriz Levinger, and before maturity transferred by indorsement to respondent bank. As a complete defense it is alleged in the answer that the only consideration for the note was malt beer purchased by appellant from Levinger to be sold as a beverage in violation of law, and at the time of the purchase of said note respondent well knew that the same was without consideration other than such intoxicating liquor, fo be sold m this state in violation of the constitution and laws thereof. Although it appears from the undisputed evidence inlroduced at the former trial that the beer was manufactured by and purchased from the Sioux Falls Brewing Company, with which Levinger was not shown to be in any way connected,' the court on the 23d day of January, 1898, rendered judgment dismissing respondent’s complaint upon its merits, with costs in fayor of ap
According to the affidavit of appellant upon which the motion to set aside the judgment is based, F. L. Soper. Esq., was his attorney employed, on a salary, to look after all matters requiring attention, until February, 1898, when a settlement was had between them, and Mr. Soper was discharged, lie further states “that some time in the summer of 1898 said Soper advised him that a motion for a new trial’had been made and argued, but that said Soper never at any time since then gave him any information regarding this case, and he supposed that the motion had been either taken under advisement or
As previously noticed, it is alleged in the answer that Moriz Levinger, to whom the note was executed and delivered by appellant, was engaged in the business of selling malt beer, and that he purchased of such payee named in the notea quantity of such beer, which constituted the only consideration therefor; while the undisputed testimony of appellant shows that the note was given in settlement for malt beer purchased from and manufactured by the Sioux Falls Brewing Company.