Deere & Webber Co. v. Hinckley

• Decision Date: 10 January 1906
• Citation: 20 S.D. 359,106 N.W. 138
• Court: South Dakota Supreme Court
• Parties: DEERE & WEBBER COMPANY, Plaintiff and respondent, v. W. L. HINCKLEY, Defendant and appellant.

20 S.D. 359

106 N.W. 138

DEERE & WEBBER COMPANY, Plaintiff and respondent, v. W. L. HINCKLEY,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Marshall County, SD

Hon. James H. McCoy, Judge

Affirmed

Byron Abbott

Attorney for appellant.

Campbell & Taylor

Attorneys for respondent.

Opinion filed, January 10, 1906

CORSON, J.

This is an appeal from a judgment entered upon a directed verdict in favor of the plaintiff. The action was instituted to recover of the defendant the amount due upon certain promissory notes, and the defendant in his answer admitted his indebtedness upon the notes, but pleaded the pendency of another action upon the same notes and also a counterclaim for $5,000 damages for slander by the agent of the plaintiff. When the case was called for trial, the defendant moved for a continuance of the cause over the term, which was denied, and upon the trial the defendant offered in evidence the record of a former action and notice of appeal and undertaking on appeal from the order dismissing the action. This evidence being’ objected to, the objection was sustained by the court, and the evidence excluded. No evidence being offered by the defendant in support of his counterclaim; and the execution and non-payment of the notes set out in the complaint having been admitted by the answer, the court directed a verdict in favor of the plaintiff.

Three questions are presented by the record in this case, namely:

(1) Did the court err in refusing defendant a continuance of the cause over the term?

(2) Did the court err in excluding the exhibits offered for the purpose of showing the pendency of another action for the same causes of action?

(3) Did the court err in directing a verdict in favor of the plaintiff?

It is contended by the respondent, in support of the judge’s ruling in denying a continuance of the action, that the affidavit made on behalf of the defendant for the purpose of obtaining a continuance was clearly insufficient, in that it failed to show any diligence on the part of the defendant in securing the presence of the witnesses on the trial or their depositions to be used therein. The respondent is clearly right in its contention. An examination of the affidavit discloses no diligence whatever on the part of the defendant in securing the testimony of the witnesses named in the affidavit, or their depositions. All that is said on that subject in the affidavit is that this defendant has not been able to procure his witnesses to go to trial.” No statement is made as to what efforts have been made, if any, as to procuring the attendance of the witnesses, and no reason given why their depositions, if their attendance could not be procured, had not been taken. Such a showing is clearly insufficient. Stone v. Chicago, M. & St. P. Ry. Co.,(1892); Hood v. Fay,(1901); J. I. Case Threshing Machine Co. v. Eichinger,(1902). While it is true that it appears from the affidavit that but a short time had intervened between the joining of issue and the time of trial, still it was incumbent upon defendant to have made some effort to procure his witnesses or to secure their depositions, and he should have shown to the court what diligence had been used in his attempt to procure his witnesses or their evidence. It is further contended by the respondent that the counterclaim did not state facts sufficient to constitute a counterclaim to the action, in that a corporation cannot be held liable in an action of slander. In the view we have taken as to the insufficiency of the affidavit to entitle the defendant to a continuance over the term, we do not deem it necessary to discuss or decide the question presented as to the liability of the corporation in such an action.

The second question presented is one of more difficulty. It appears from the record offered in evidence by the defendant that an action had been commenced upon the notes in controversy in this action, and that the plaintiff had dismissed that action by leave of the court without notice to the defendant, and from the order or judgment...