15 S.D. 238 | S.D. | 1901
Thomas H. White, deceased, whs at the time of his death treasurer of the plaintiff corporation. The object of this action is to recover of his estate a balance alleged to be due from him as such treasurer. Two defenses are interposed: First, that no balance was due the corporation; and, second, that there was an accord and satisfaction prior to the treasurer’s death. A verdict having been returned in favor of the defendant, plaintiff made applica
Appellant’s assignment of errors is as follows :. “The appellant says there is manifest error upon the face of the record, in this: that the court erred in the following particulars': (i.) In giving to the jury plaintiff’s instruction No. i; (2) in giving to the jury plaintiff’s instruction No. 2; (3) in giving to the jury plaintiff’s instruction No. 3; (4) in giving the court’s charge to the jury as a whole; (5) in giving the particular portion of the court’s charge covered by defendant’s exception No 1; (6) In giving the particular portion of the court’s charge covered by defendant’s exception No. 2; (7) in granting plaintiff’s motion for a new trial, and in making the order vacating the verdict of the jury and granting a new trial; (8) in not rendering judgment for the.defendant upon the verdict.” If there were six particulars wherein the court erred in giving its charge, and if the court erred in giving the charge as a whole, certainly a new trial should have been granted. This being not only conceded, but alleged, by appellant, he is not in a position to complain of the circuit court’s ruling upon the plaintiff’s application.
Again, one of the statutory grounds designated in the notice of intention was insufficiency of the evidence to justify the verdict. The order does not specify upon what ground it was based. An order granting a new trial on the ground of insufficiency of the evidence will be reversed only where there has been manifest abuse of discretion. Thomas v. Fullerton, 13 S. D. 200, 83 N. W. 45; Distad v. Shanklin, 11 S. D. 1, 75 N. W. 205; Morrow v. Letcher, 10 S. D. 33, 71 N. W. 139; Hodges v. Bierlien, 4 S. D. 258, 56 N. W. 811; Alt v. Railway Co., 5 S. D. 20, 57 N. W. 1126; Grant v. Grant, 6 S. D. 147, 60 N. W. 743.
It is undisputed that a short time before Mr. White died the
The order appealed from is affirmed.