Grant v. Grant

• Decision Date: 02 November 1894
• Citation: 60 N.W. 743,6 S.D. 147
• Parties: GRANT, Plaintiff and appellant, v. GRANT, Defendant and respondent.
• Court: South Dakota Supreme Court

6 S.D. 147, 60 N.W. 743 (1894)

GRANT,

Plaintiff and appellant,

v.GRANT,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Brookings County, S.D.

Hon. J. O. Andrews, Judge

Affirmed

Geo. N. Baxter

Attorney for appellant.

H. S. Gipson

Attorney for respondent.

Opinion filed Nov. 2, 1894

CORSON, P. J.

This was an action for a divorce upon the ground of desertion. A trial was had before the court without a jury, and judgment was rendered in favor of the plaintiff. The defendant moved for a new trial, which was granted; and from the order granting a new trial the plaintiff appeals, and assigns as error the granting of ‘said order. The grounds of the motion for a new trial were as follows: First, errors of law occurring at the trial; second, insufficiency of the evidence to justify the findings; third, newly-discovered evidence; fourth; irregularity in the proceedings’. The court, in its order, states the grounds upon which the new trial was granted, to be: “Third, newly-discovered evidence material to the defendant, which she could not, with reasonable diligence, have discovered and produced at the trial; fourth, irregularity in the proceedings of plaintiff in said action, in this: that said plaintiff was not at the time of the commencement of this action, nor at the time of the trial thereof, nor is he now, nor has he ever been, an actual resident, in good faith, of the state of South Dakota; nor was he an actual resident thereof, in good faith, continuously, for more than ninety days prior to the commencement of this action, or for any period of time whatever, and that the judgment and decree herein was procured by fraud upon the court and defendant, on false allegations and proofs of the alleged residence of plaintiff.”

A motion for a new trial upon questions of fact is addressed to the sound discretion of the trial court, and the decision of such court in gnanting or refusing the same will not be disturbed by the appellate tribunal unless it appears affirmatively from the record that there has been an abuse of such discretion. Hodges v. Bierlein, 4 S.D. 258, 56 N.W. 811 (1893); Alt v. Chicago & N.W. RY. Co., 5 S.D. 20, 57 N.W. 1126 (1894); 16 Am. & Eng. Enc. Law, p. 693, and authorities cited; Elliott App. Proc. § 603 and authorities cited.

A clearer case is required to authorize the reversal of an order granting a motion for a new trial than is required to reverse an order overruling such motion. Halpin v. Nelson, 76 Iowa, 427, 41 N.W. 62; Hodges v. Bierlein, supra.

One of the important questions raised by the issues on the trial of this cause was as to whether or not the plaintiff had, in good faith, been a resident of this state during the time then prescribed by the statute, prior to the commencement of the action, and was such resident at the time the action was tried, the defendant being a resident of the state of Minnesota. It was to this question, mainly, that a large number of affidavits presented to the trial court on the motion for a new trial, on the part of the appellant, were directed. By them the appellant sought to establish that the alleged residence of the plaintiff in this state was not in good faith, and was not for the purpose of making this state his home, but was colorable only, and for the express purpose of enabling him to institute this action for a divorce under the provisions of the statute of this state. The court below, in its review of the evidence given on the trial in this case, and in its examination of the affidavits disclosing the ...