Minnehaha National Bank v. Torrey
74 N.W. 890
S.D.
1898
Check Treatment
Corson, P. J.

This case was decided at the present term of this court, and is reported in 10 S. D. 379; 73 N. W. 193. A petition for a rehearing has been filed, and also a motion to modify the judgment of this court by striking out that part thereof directing the court below to enter a judgment in favor of the plaintiff, and substituting therefor an order directing a new trial. The petition for a rehearing is denied, and the motion to modify the judgment is granted.

Upon a careful re-examination of the question as to the cases in which this court should direct a judgment, on a reversal, to be entered in the court below in favor of the party appealing, we are satisfied that in this case this court should have ordered a new trial, and not directed a judgment for the appellant. The discretion of this court of directing the court below to enter judgment for the appellant on a reversal should only be exercised in cases when it is entirely plain, either from the pleadings or from the very nature of the controversy, that the party against whom the reversal is pronounced cannot prevail in the action. It must appear certainly that he cannot. Griffin v. Marquardt, 17 N. Y. 28; Foot v. Insurance Co., 61 N. Y. 571; Muldoon v. *549Pitt, 54 N. Y. 269; Guernsey v. Miller, 80 N. Y. 181. While a majority of this court was of the opinion that upon the evidence presented by the record the issue as to an extension of time was not sustained, this court cannot say that upon a new trial the defendant, may not succeed upon that or some other issue upon making further proof in the case. The judgment of the circuit court will therefore be so modified as to order a new trial.