Gibbs v. Commercial & Sav. Bank of Sioux Falls
| Decision Date | 05 May 1926 |
| Docket Number | No. 5968.,5968. |
| Citation | 208 N.W. 779,50 S.D. 134 |
| Court | South Dakota Supreme Court |
| Parties | GIBBS v. COMMERCIAL & SAVINGS BANK OF SIOUX FALLS. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Minnehaha County; L. L. Fleeger, Judge.
Action by L. C. Gibbs against the Commercial & Savings Bank of Sioux Falls. Judgment for plaintiff, and defendant appeals. Affirmed.Lyon, Bradford & Grigsby, of Sioux Falls, for appellant.
Boyce, Warren & Fairbank, of Sioux Falls, for respondent.
[1] This case was tried before a referee. He took the evidence and made findings of fact and conclusions of law favorable to plaintiff and reported them to the trial court, which upon the hearing made them the findings and conclusions of the court and entered judgment accordingly. The appeal is from the judgment. No motion for new trial was made. It is therefore urged by respondent that the evidence is not properly before this court, and that we cannot review the sufficiency of the evidence to sustain the findings. Rule 44 of trial courts of record (40 S. D. prelim. p. 35), provides:
“The judgment so entered may be appealed from in like manner as from judgments in other cases and upon such appeal all questions may be raised that are permissible upon an appeal from a judgment and from an order denying a new trial, no motion for a trial being necessary.”
This rule was promulgated by this court pursuant to chapter 298, Laws 1919. We find nothing in the statutes which prohibited this court from promulgating a rule to dispense with motions for new trial before the trial court in matters referred to a referee. Opportunity is given by the rules for a review by the court of the sufficiency of the evidence to sustain the findings of the referee. We think no good purpose would be served by again requiring a review of the evidence by the court before an appeal to this court can be taken. We think the rule is salutary. There is no merit to respondent's contention. Dunn v. Gamble, 198 N. W. 821, 47 S. D. 303.
[2] On February 20, 1923, plaintiff, a live stock buyer at Forestburg, shipped two carloads of hogs to the Tri-State Farmers' Commission Company of Sioux Falls, hereinafter called the Tri-State. The hogs were received and sold on February 22 for the net sum of $2,335.51. On February 23 the Tri-State deposited the proceeds in defendant bank. On February 22 it mailed plaintiff its account of sales together with a check on defendant bank. On February 23 the Tri-State deposited in defendant bank the total sum of $28,451.74. Of this sum $21,417.61 was the net proceeds from sales of live stock made by it for other parties, including that of plaintiff, and was not the money of the Tri-State.
After such deposit the bank on that day charged the Tri-State's account with $23,427 because of drafts in that amount theretofore drawn by the Tri-State on eastern commission houses and theretofore credited to the Tri-State's account, because of the absconding of the manager of the Tri-State, and because it learned that the drafts were void and would not be paid. Later the drafts were returned...
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