Bright v. Ecker

• Decision Date: 04 January 1897
• Citation: 9 S.D. 449,69 N.W. 824
• Parties: H.C. BRIGHT, Administrator of the Estate of Jerry Law, deceased, Plaintiff and appellant, v. O. ECKER and Susie Law, Defendants and respondents.
• Court: South Dakota Supreme Court

9 S.D. 449

69 N.W. 824

H.C. BRIGHT, Administrator of the Estate of Jerry Law, deceased, Plaintiff and appellant, v. O. ECKER and Susie Law,

Defendants and respondents.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. J. W. Jones, Judge

Petition for rehearing denied

Joe Kirby, Sioux Falls, SD

Attorney for appellant.

R. W. Hobart, Aikens, Bailey & Voorhees, Sioux Falls, SD

Attorneys for respondents.

Opinion filed Jan. 4, 1897

(See 9 SD 192, 68 NW 326)

HANEY, J.

Respondents contend in their petition for rehearing that this court should not have said the trial court erred (1) “because no grounds of objection were alleged; (2) because the order of the county court upon such examination was prima facie evidence of plaintiff’s right to recover (Comp. Laws, Sec. 5776)”; that the point was not raised by appellant and that counsel for respondents did not practically concede the correctness of such conclusion. Our former opinion is reported in Bright v. Ecker,(1896). They also contend that the law making such order prima facie evidence was unconstitutional when enacted. Certainly, the learned council have inadvertently disregarded the following forcible, if not elegant, language contained in appellant’s original brief: “To this [the record of the county court] defendants objected. The Lord only knows for what reason; we don’t.” And they seem to have overlooked the following, found in their own original brief:

“It may be further urged that under the provisions of Sec. 5776, Comp. Laws, the order of the county court offered in evidence in this case would be prima facie evidence of the right of the plaintiff to such property. Undoubtedly this would be true if sufficient had been produced or offered in evidence as a foundation for its reception, but the court must bear in mind that in this case the defendant Law occupied the same position as a sole legatee, and, before this plaintiff would be entitled to maintain this action, it would be necessary to show that it was prosecuted for the benefit of creditors, and that there was not sufficient property in his hands as administrator to pay their claims. … We seriously contend in this case that the judgment of the lower court should remain undisturbed: (1) Because the complaint does not state facts sufficient to constitute a cause of action; (2) because the evidence introduced and the evidence offered is insufficient to sustain a verdict for the plaintiff.”

Thus, it appears that consideration was given every contention made by respondents, and no points were passed upon to which our attention was not called by counsel for appellant. The validity of the statute making the record of the county court prima facie evidence was not called in question.

The reason of the rule requiring specific objections is two fold: (1) To enable the trial judge to understand the, precise question upon which he has to rule, and to relieve him from the burden of searching for objections which counsel is unable to discover, or which he sees fit to conceal; (2) to afford the opposite party an opportunity to obviate it before the close of the trial, if well taken. It is therefore a part of the rule that the party objecting to testimony will not be permitted to change his ground on appeal. 1 Thomp. Trial, 561.

“There are numerous authorities and adjudications in support of the natural, common-sense proposition that a general objection raises no issue, except it is as to whether the evidence would, under any circumstances or for any purpose, be admitted; and that a specific objection raises no other issue than the particular one tendered. They are also in support of the proposition that, if a judge overrule a general objection, he must be sustained, unless it clearly appears that under no possible circumstances in the case would the evidence come in, and that, if he sustain a general objection, he must be...