Jeansch v. Lewis
| Decision Date | 04 March 1891 |
| Citation | 48 N.W. 128,1 S.D. 609 |
| Parties | Jeansch v. Lewis et al. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. Where an action is being prosecuted against two defendants as copartners, and no question is raised as to the liability of one independently of the other, and where it was stipulated at the commencement of the trial, after dismissing as to a third defendant, "that the action proceed" against the other two "as copartners under the firm name of Lewis Bros.," held, that a verdict in favor of plaintiff "and against the defendant," etc., was properly construed by the court as a verdict against the two, or the firm, and a judgment entered against both defendants upon it was valid, and the omission of the letter "s" in defendant was a mere clerical error.
2. Verdicts are to receive a reasonable construction, and such as will carry out the intention of the jury; and where, as in this case, the intention of the jury was clear to the court it was its duty to disregard a merely clerical error, which it would at once have corrected had its attention been called to it.
3. Where a motion for a new trial was argued and submitted to the judge of the territorial court who tried the cause, but no order or record of any decision was made, and the motion was brought up before a state circuit judge who succeeded him, held, the circuit judge properly received evidence showing such territorial judge had actually overruled the motion. BENNETT, J., dissenting.
4. Held, further, that a motion once heard and decided by a court cannot be renewed in the same court upon the same facts without leave of court, and that this rule applies as well to cases where there has been a change of judges as where the motion is made before the same judge. BENNETT, J dissenting.
5. Held, further, that the circuit judge, being satisfied from the evidence introduced before him without objection that the territorial judge who tried the case had decided the motion for a new trial, and overruled it, though no order was signed or record made of it, very properly refused to hear it again. BENNETT, J., dissenting.
6. Where, in a case tried before a jury, the evidence is conflicting, this court will not weigh the evidence, or go further than to determine therefrom whether or not the party has given sufficient legal evidence to sustain his verdict without regard to the evidence given on the part of the other party, except so far as such evidence tends to sustain his case.
7. Held, in this case, that there is evidence sufficient to sustain the verdict, and that the same should not be disturbed.
Appeal from circuit court, Kingsbury county.
A. P Schenian and B. A. Dunlap, for appellants. A. B. Melville, for respondent.
This is an action for damages alleged to have been caused by the negligence of defendants. The action was tried before a jury, and a verdict and judgment rendered for plaintiff. A motion for a new trial was made and overruled. From the judgment and order overruling the motion for a new trial, defendants appeal to this court. Three questions are presented by the assignment of errors, namely: (1) Does the verdict, in the form it was rendered by the jury, sustain the judgment? (2) did the circuit court err in denying the motion for a new trial without hearing the motion upon the merits? and (3) was the evidence sufficient to justify the verdict?
1. The verdict rendered by the jury is as follows: "We, the jury in the above-entitled action, find all the issues in favor of the plaintiff and against the defendant, and assess his damages at $180.00." Upon this verdict, judgment was entered against both defendants. The defect in the verdict complained of is that the jury used the word "defendant" instead of "defendants." As the action was against the two defendants as copartners, and no question was made on the trial as to their liability as copartners, if liable at all we think the omission by the jury to add the letter "s" to "defendant" was simply a clerical error that the court might properly have corrrected had its attention been called it to, and was properly disregarded by the court below. The intention of the jury was clear to the court, as it was stipulated at the commencement of the trial, after dismissing as to defendant Lindner, that the action should "proceed against Knute Lewis and Ben Lewis as copartners under the firm name of Lewis Bros." There being no question, then, in the case as to the liability of one defendant independent of the other, the court properly construed the word "defendant" to mean the firm, and that such was the intention of the jury Verdicts are to receive a reasonable construction, and such as will carry out the intention of the jury. Kelsey v. Railway Co., (S. D.) 45 N.W. 204.
2. It appears from the record that the case was tried before the Honorable JAMES SPENCER, one of the judges of the territorial court, and that the motion for a new trial was made and argued before him while a member of that court, but that no formal order was signed by him or record made in his court showing that he had ever decided the motion. When the present state circuit judge came upon the bench, the motion was renewed before him. After several postponements, the matter came on for hearing June 17, 1890, by stipulation. At this hearing the attorney for the plaintiff read to the court certain letters from Ex-Judge SPENCER and the former clerk of his court, and affidavits tending to prove that Judge SPENCER had before his retirement from the bench passed upon the motion, and denied it. Thereupon the circuit court made an order overruling the motion for a new trial, stating in said order that it finds that the motion had been decided by Judge SPENCER, and overruled. It is contended by counsel for defendants that as the plaintiff had by his counsel stipulated "that the said motion for a new trial, and the proceedings thereon, be submitted to and argued before the circuit court," the circuit court should have heard the motion upon the merits and that it was error in that court to take into consideration the action had in the matter before Judge SPENCER. The rule is that a motion once heard and decided by a court cannot be renewed in the same court without leave of the court; and we apprehend this rule applies as well to cases where there has been a change of judges as when the motion is made before the same judge. Hence the circuit court, being the successor of the district court, and Judge ANDREWS being the successor of Judge SPENCER, the said circuit court, when satisfied that the motion had been heard and decided by Judge SPENCER, before whom the case was tried, very properly refused to hear it again. The order signed by the judge, or the records of the court, would have been the best evidence of the decision of the court; but, when it was shown that these did not exist, it was competent to establish the fact that a decision had been made by other evidence; and as the letters of Judge SPENCER and of his former clerk, and affidavits, seem to have been received without objection on the part of defendants' attorneys, there was no error in the court holding them sufficient to establish the fact, and basing its denial of the motion upon them. The stipulation was not binding upon the circuit judge, and it was within his discretion whether or not he would again hear a motion heard and determined by his predecessor on the bench; and, having so refused to hear it, we cannot say that he did not rightly exercise his discretion in the matter.
3. This brings us to the last question presented. There are three essential elements constituting plaintiff's cause of action necessary for him to establish by legal evidence to entitle him to recover, namely: (1) The injury compained of (2) the negligence of defendants; and (3) the damages resulting therefrom. All these are questions of fact for the jury, and are usually to be determined by them. An examination of the evidence discloses the fact that upon each and all of these questions plaintiff introduced evidence, and such as in our judgment authorized the jury in finding a verdict for the plaintiff. There was, it is true, a conflict in the evidence; but this court will not weigh such conflicting evidence, or go further than to determine threfrom whether or not plaintiff has given sufficient legal evidence to sustain the verdict without regard to the evidence given on the part of the defendants, except so far as such evidence...
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