219 N.W. 121 | S.D. | 1928
This action is brought to recover two promissory notes of $3,000 each, claimed to have been transferred through an unlawful preference to defendant by the insolvent Woonsocket State Bank on or about the day it was taken over by the superintendent of banks for liquidation. Judgment for plaintiff, and defendant appeals from the judgment alone.
Appellant presents several assignments of error which require a review of the evidence. This court has held in several cases that the sufficiency of the evidence cannot be reviewed on an appeal from the judgment alone. Pierce v. Manning, 2. S. D. 517, 51 N. W. 332; Lee v. Clark Imp. Co., 31 S. D. 581, 141 N. W. 986; Keyes v. Baskerville, 42 S. D. 381, 175 N. W. 874. An exception to this rule exists where judgment is entered after entry of order denying new trial if such order is designated for review. Keyes v. Baskerville, supra. Where a motion for a directed verdict made at the close of plaintiff’s case and renewed at the close of all the evidence is denied, on appeal where error is assigned on the denial of such motion this court will, in reviewing such assignment, review the evidence to determine if the court erred in denying the motion (Lyle v. Barnes, 30 S. D. 647, 139 N. W. 338), but" in such case the weight or sufficiency of the evidence is not reviewed, but the review is confined to ascertaining if there is any evidence warranting a submission of the issues to a jury.
The seventh assignment, that the court erred in its conclusions of law and the eighth, that the court erred in entering judgment because the findings are insufficient to support the conclusions or the judgment, are the only assignments that can be considered. The court found that the Woonsocket 'State Bank was insolvent on the 18th of April, 1924, and on the 1st day of May, 1924, was taken over by the superintendent of banks for liquidation; that on the said 18th of April, appellant, Parsons, was a depositor of the bank having then on deposit $7,811.95; that
We think the findings are amply sufficient to sustain such conclusion and the judgment entered for the respondent to that effect. A fair inference to be 'drawn from the findings is that the transaction was an unlawful preference and not a transaction in the due and regular course of business. By the transaction appellant had full use of his deposit against which he freely checked, and after the bank closed he canceled his checking account to the extent of $6,000 and received- in lieu thereof valuable bills receivable assets of the bank to the prejudice of other depositors and creditors of the bank.
The judgment appealed from is affirmed.