Distad v. Shanklin
| Decision Date | 17 May 1898 |
| Citation | 75 N.W. 205,11 S.D. 1 |
| Parties | DISTAD v. SHANKLIN. |
| Court | South Dakota Supreme Court |
Appeal from circuit court, Brulé county; Frank B. Smith, Judge.
Action by M. E. Distad against Harry A. Shanklin. Verdict for plaintiff, and from an order granting plaintiff's motion for a new trial defendant appeals. Affirmed.
Edwin Greene, for appellant. S. H. Wright, for respondent.
This is an appeal from an order granting a new trial. Objections were made by the appellant to the proceedings on the motion for a new trial in the court below. The defendant moved the court to dismiss plaintiff's motion for a new trial, on the ground "that the notice of intention was insufficient indefinite, and uncertain, and that there was nothing on the files of the court on which the motion could be heard." This motion was denied, and exception taken. The notice of intention designated two statutory grounds: One was "irregularity in the proceedings of the jury," and the jury was incompetent to try the issue in said cause, for the reason that one of the jurors was insane at the time of the trial. The other was "for insufficiency of evidence to sustain or justify the verdict, and because the verdict of the jury is contrary to the evidence and the instructions of the court, and also because it is manifest that the jury, in arriving at a verdict, disregarded the evidence as to the value of the property which plaintiff was to receive in making the trade, described in the pleadings and evidence the depositions of the witnesses testifying to the value of the said property, and the evidence of the plaintiff, all showing that said property was worth at least $1,000, while there was no evidence to the contrary." The notice of intention specified that the motion would be made upon affidavits, minutes of the court, the stenographic report of the testimony, pleadings, etc.
Appellant contends that the statement that the jury was incompetent in that one of the jurors that tried the issue was insane, is not a ground for a new trial. This was evidently stated to specify in what the irregularity consisted, as required by the statute. We are of the opinion that the specification was not only proper, but, under the statute, was necessary.
The second ground of the motion,--insufficiency of the evidence to justify the verdict,--we think, was sufficient, as the particulars in which the evidence was insufficient substantially complied with the requirements of the statute and were such that the court and adverse party could readily understand in what particulars the evidence was claimed to be insufficient.
Appellant further contends that, as the stenographer's notes were not on file when the motion was heard, the court had nothing before it upon which it could pass upon the motion. The notice specified that the motion would be made upon "the minutes of the court," and no law has been called to our attention requiring the notes of the stenographer to be filed or used on the hearing. The term "minutes of the court," as used in subdivision 4, § 5090, Comp. Laws seems to have no well-defined legal meaning, but is evidently used in that section as referring to such minutes as the judge may make of the evidence, and to his recollection of the same, and is evidently intended to relieve a party from the expense and labor of preparing a statement or bill of exceptions. To require the party moving for a new trial upon the minutes of the court to procure a transcript of the stenographer's notes, and cause the same to be filed, would, in effect, impose upon him a greater burden than preparing a bill of exceptions or statement.
Such, in our view, was not the intention of the lawmaking power. The danger suggested by appellant, that this court may have a different record before it than that upon which the motion was decided, is more imaginary than real. The motion is required to be disposed of speedily, and the statement prepared after the motion is heard, in order that the record may be reviewed in this court, is settled by the trial judge or court under the provisions of section 5091, which limits the statement to the grounds argued before the court for a new trial, and to so much of the evidence, etc., as may be necessary to explain them. If the stenographer's notes are written out and on file, they may be referred to by either party or the court. Section 5092. We are of the opinion that the court ruled correctly in denying appellant's motion.
Plaintiff and respondent brought this action against the defendant and appellant...
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