Gaines v. White

• Decision Date: 15 January 1892
• Citation: 50 N.W. 901,2 S.D. 410
• Parties: GAINES, Plaintiff, v. WHITE, Defendant.
• Court: South Dakota Supreme Court

2 S.D. 410

50 N.W. 901

GAINES, Plaintiff, v. WHITE,

Defendant.

South Dakota Supreme Court

Appeal from District Court, McCook County, SD

Hon. John E. Carland, Judge

Former opinion adhered to.

Davis, Lyon & Gates, Sioux Falls, SD

Attorneys for appellant.

E. H. Wilson, Salem, SD

Keith & Bates, Sioux Falls, SD

Attorney for respondent.

Opinion filed January 15, 1892

(See 1 SD 435, 47 NW 524)

BENNETT, J.

This cause was brought by appeal to this court at the October term, 1890, at which term a decision was rendered affirming the judgment of the court below. Afterwards a rehearing was granted. The reasons alleged why the former decision should be reversed are:

First. That before the trial of the cause in the court below there were two motions made for a continuance, and both overruled, and that in the consideration of the case by this court one of the motions for continuance was overlooked. The motion considered was based upon the ground of absent witnesses but it is claimed by appellant that just before the case was called for trial Winsor & Kittredge, the leading counsel in the case, retired from it, and Judge Palmer, another attorney, was suddenly called into the case, and he at once made an oral motion for a continuance, based upon the ground of surprise at the sudden retirement of Winsor & Kittredge. “That motion,” says the appellant, “was urged, but was denied by the court. These facts do not appear in the bill of exceptions, but are brought forward by the affidavits of Butterfield and White.” We think the record does not sustain this statement. The abstract shows that the ease was tried at the December term, 1888; that at the first call of the calendar on the 12th day of December, M. A. Butterfield, counsel for the defendant, gave oral notice of a motion for a continuance, and thereafter read affidavits in support of it, which affidavits were filed in the case. Neither these affidavits nor the motion state the ground of the motion to be surprise at the retirement of Winsor & Kittredge from the case, but the basis of the motion and affidavits was the absence of certain material witnesses. This motion was overruled. Exceptions were taken, and this order was made one of the special grounds of error on the appeal. The next proceeding in the case, as appears by the bill of excep tions, is that on the 14th day of December, 1888, a jury was called and sworn, witnesses examined, cause submitted to the jury, verdict rendered in favor of plaintiff, and motion for a new trial filed by defendant. The affidavits upon which the motion for continuance at the call of the case was based nowhere state that the continuance is asked on the ground of surprise because of the retirement of Winsor & Kittredge from the case. The first time such a claim appears to have been made was on the argument of the motion for a new trial, more than three months after the trial, March 30, 1889. The motion for a continuance of the case was made on the sole ground of absent witnesses. An examination of Mr. Butterfield’s and Mr. White’s series of affidavits shows that neither claim that the motion for continuance was based upon the ground of surprise because of the sudden retirement of counsel from the case. In Butterfield’s affidavit of March 30, 1889, he states that he was surprised, but does not claim that he called the attention of the court to his surprise. He simply...