223 N.W. 831 | S.D. | 1929
The defendant in this action is a banking corporation carrying on a general banking business at Platte. Plaintiff had -deposited money in said bank, and on the 18th day of November, 1925, had $1,525 in an open account in said bank. This money was the proceeds of certain hogs that had been sold by plaintiff. On the 27th day of said month plaintiff issued a check on said bank for $1,525. The check was presented to defendant for payment, but payment thereon was refused. The ground for such refusal was that defendant claimed that the hogs sold by plaintiff were the property of A. F. Vogelgesang, who was plaintiff’s father; that A. F. Vogelgesang was heavily indebted to defendant; and that it had a right to apply said money on A. F, Vogelgesang’s debt.
After the refusal to pay said check, plaintiff made a demand for the money, which demand was refused, and the plaintiff brought this suit for the recovery of the same. The case was tried to a jury. At the close of the evidence the court, upon plaintiff’s motion, directed a verdict for the plaintiff.
Judgment was entered for plaintiff upon said verdict, and defendant appeals.
The facts upon which defendant bases its claim are as follows:
A. F. Vogelgesang was then, and for several years prior thereto had been, operating a large farm a short distance from Platte.
Appellant contends that the court erred in overruling its obj ection to the introduction of any evidence on the part of plaintiff upon the ground that the complaint does not state facts sufficient to constitute a cause of action. We find no- such objection in the record; but, if it was made, it was properly overruled, as the complaint does state a cause of action.
On the trial the plaintiff was asked this question: “What other property did you have at that time, Conrad?” This was objected to as irrelevant, -immaterial, and not within the issues. The objection was sustained and error assigned. We fail to- see how this was material to any issue in the case. A number of other assignments are predicated upon the exclusion of certain questions put to the plaintiff- while on the witness stand, -but we are unable to see how any such questions were material to the issue, or how the defendant was in any manner prejudiced.
While the plaintiff’s father, A. L. Vogelgesang, was on the witness stand, defendant asked this question: “And isn’t it a fact that about a week or ten days prior to your taking bankruptcy, that your son, Conrad, took about sixty head of hogs from your
We find no prejudicial error in this record, and the judgment and order appealed from are affirmed.