Davis & Daniels Co. v. McKillip

• Decision Date: 13 December 1917
• Docket Number: 4230
• Court: South Dakota Supreme Court
• Parties: DAVIS & DANIELS COMPANY, Plaintiff and respondent, v. ELIZABETH I. MCKILLIP and Ida M. Warren, formerly Ida M. McKillip, Defendants and appellants.

39 S.D. 544

165 N.W. 380

DAVIS & DANIELS COMPANY, Plaintiff and respondent, v. ELIZABETH I. MCKILLIP and Ida M. Warren, formerly Ida M. McKillip,

Defendants and appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Davison County, SD

Hon. Frank B. Smith, Judge

#4230--Affirmed

H. G. Giddings

Attorneys for Appellant.

Charles F. Tym

Attorneys for Respondent.

Opinion filed December 13, 1917

WHITING, J.

Action to recover on a promissory note. Judgment for plaintiff against one defendant, who has appealed.

The plaintiff called both defendants as adverse witnesses, and proved the signatures to the note. As part of their testimony while so testifying for plaintiff these witnesses testified to the fact that the note had been materially altered after its execution. Without further testimony the note was received in evidence over objection. This ruling was erroneous, and, as plaintiff rested its case without further evidence, such error would have been prejudical if the defense had also rested, and, upon such note wrongfully admitted, a verdict had been rendered in favor of plaintiff. But defendants did not rest their case, and afterwards evidence was received that rendered the note competent to go before the jury, and the error became nonprejudicial.

Appellant also assigns as error the ruling of the court admitting certain evidence over the objection that it was "irrelevant and immaterial, and not rebuttal." The evidence received over this objection was clearly proper rebuttal. If it were to be conceded that, under the reply interposed, such evidence was irrelevant and immaterial to the issues raised, yet the mere objection that it was "irrelevant and immaterial" without calling the attention of the court to the reasons why it was considered irrelevant and immaterial was insufficient upon which to base a claim of error; it being apparent that the reply could properly have been so amended, if need be, as to avoid the grounds of the objection if it had been specific. Merrill v. M. & St. L. Ry. Co., 129 N.W. 468.

The only assignment of error really presenting any question of merit is one assigning as erroneous the instructions given by the trial court. The court instructed the jury that, if it found the alteration was made with the consent of appellant, it should return a verdict in plaintiff's favor, while if it found that the alteration was made without the consent of appellant, it should return a verdict in appellant's...