19 S.D. 45 | S.D. | 1904
This is an action by the plaintiff and appellant to recover the value of two certain horses and a set of harness claimed by him, which were taken by the sheriff of Codington county under an execution issued in an action wherein the McCormick Harvesting Machine Company was the execution creditor and James L. Smith was the execution debtor. The plaintiff resides in Iowa, but owned a farm in Codington county, which was leased to said Smith. The defendant, as sheriff of the county, levied upon the property in controversy as the property of Smith, and the same, while in his possession, was destroyed by fire. The case was tried to a jury, which found a verdict in favor of the plaintiff, and judgment was entered thereon. Subsequently, on motion for a new trial, the same was granted, and from the order granting such new trial the plaintiff has appealed.
It is conceded by the appellant that, as a general rule, an appellate court requires a stronger Case to be made, to obtain a reversal of an order granting a new trial than it does to secure the reversal of an order denying the same, but he contends in this case that in granting the new trial the court abused its discretion. The plaintiff alleged in his complaint that he was the owner of the property, and this allegation was denied by the defendant in his answer, and an issue was therefore raised upon the allegation of ownership and denial of the same. On the trial evidence was introduced by the plaintiff tending to prove that he was the owner of the property at the time it was levied upon by the defendant, and there was also evidence on the part of the defendant tending to prove that the property had been purchased by Smith, the execution debtor, prior to the levy of the execution. The court, notwithstanding this conflict in the evidence as to the sale of the property to Smith and the undisputed evidence that Stoy was authorized to sell the property, instructed the jury as follows: “You are instructed in this case that for the purposes of this trial the personal property described in the complaint was owned at the time it was taken by the sheriff by the plaintiff, Mr. Weller. The undisputed testimony shows that Mr. Weller owned the property
These views lead to the conclusion that the order of the circuit court granting a new trial should be affirmed, and.the same is affirmed. ' •