Lindsay v. Pettigrew

• Decision Date: 13 July 1892
• Citation: 52 N.W. 873,3 S.D. 199
• Parties: Lindsay v. Pettigrew.
• Court: South Dakota Supreme Court

52 N.W. 873

3 S.D. 199

Lindsay v. Pettigrew.

Supreme Court of South Dakota

July 13, 1892

Syllabus by the Court.

1. If counsel in the argument of a case persists, against the objections of counsel for the opposing party, in stating facts to the jury, not in evidence in the case, calculated and intended to arouse the prejudice of the jury against the adverse party, it is an irregularity for which a new trial may be granted.

2. The facts set out in the affidavit in this case show such an irregularity on the part of the counsel for the respondent in his argument to the jury as entitles the appellant to a new trial.

3. The alleged irregularity of the counsel complained of was brought to the attention of the court below on an application for a new trial, and was one of the causes for which such application was made, and the facts were presented by affidavit. The application being denied by the court below the ruling is assigned as error in this court. Under the facts disclosed in the affidavit, this was correct practice and the ruling of the court below is properly before us for review.

Appeal from circuit court, Moody county; FRANK R. AIKENS, Judge.

Action by Elisha E. Lindsay against Frederick W. Pettigrew for damages for breach of a certain contract. Verdict and judgment for plaintiff. Defendant appeals. Motion to dismiss the appeal denied, and judgment reversed.

Bailey & Stoddard and J. H. Voorhees, for appellant. Joe Kirby, for respondent.

CORSON J.

This was an action to recover damages for breach of contract. Verdict and judgment for plaintiff. Defendant appeals. A motion was made in this court to dismiss the appeal upon the same grounds as those stated in the motion in Hawkins v Hubbard, 51 N.W. 774, (decided by this court at its present term.) For the reasons stated in the opinion in that case the motion is denied.

A motion for a new trial was made in the court below, one of the grounds of which was "irregularities in the proceedings of the plaintiff and his attorney by which defendant was prevented from having a fair trial." The alleged irregularities complained of were fully set out in an affidavit made by one of the counsel for defendant, the material parts of which are as follows: "That in the argument made by Joe Kirby, Esq., attorney for the plaintiff in said action at said trial, at the March term, 1891, the said Kirby, contrary to the objections of said defendant commented at length upon the fact that said action had been commenced in 1886, and that defendant had made application for change of venue to other counties, and that the said Kirby in his argument, against the objections of the defendant, sought to arouse, and did arouse, the prejudice of the jury against the defendant; that said Kirby stated in his argument to the jury, in effect, that the defendant had purposely delayed the trial of this action from term to term, and had done so for the purpose of harassing and annoying the plaintiff, and that in his evidence upon the stand the defendant had deliberately perjured himself. Affiant further says that previous to this action there had been other litigation between plaintiff and defendant, and that the said Kirby, in his argument aforesaid, commented upon the other litigation, and stated to the jury, in effect, contrary to the objections of defendant, that said litigation had been carried on over substantially the same matter concerning which this suit was brought, and that the jury in said other litigation had found a verdict for the plaintiff, and that said Kirby throughout his entire argument, contrary to the objections of defendant, abused defendant personally, and called his personal character and reputation into question, and used every means in his power to arouse the prejudice of the jury against defendant, and especially did so by reference to matters outside of the evidence properly before the jury in said trial; that affiant, acting as attorney for defendant, during the progress of said argument, called the attention of the court to the remarks made by said Kirby in his argument, and that the court then ruled that the said Kirby must keep his argument within the evidence before the jury; that, notwithstanding this fact, the said Kirby persisted in the same line of argument, and unduly prejudiced the jury against the defendant in this action." The learned counsel for the respondent contends that the matters complained of could only be brought before this court for review on exceptions taken at the time, and incorporated in a bill of exceptions; and that, not having been so brought to the attention of this court, the error, if there was any, cannot be considered. The learned counsel for the appellant, while conceding that there is a conflict in the authorities upon this question, insists that, under the peculiar provisions of our Code, the matter was properly brought before the court in the motion for a new trial, and is now properly before us for review.

The first question presented for our consideration, therefore, is as to the proper practice to be pursued in bringing irregularities of the nature complained of before this court. Section 5088, Comp. Laws, provides that "the former verdict or other decision may be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: (1) Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion, by which either party was prevented from having a fair trial. ***" This clause seems to be broad enough to include any irregularity or misconduct of an attorney who, for the purposes of the case, represents the party; and we see no reason why the misconduct complained of may not be brought to the attention of the court on a motion for a new trial, supported by affidavit. This practice seems to have been followed in Burdick v. Haggart, (Dak.) 22 N.W. 589, in the late supreme court of the territory, and no question was raised as to the practice. The same practice seems to prevail in Iowa. Dowdell v. Wilcox, 64 Iowa, 721, 21 N.W. 147; Hall v. Wolff, 61 Iowa, 559 16 N.W. 710; Hayne, New Trials, § 50. Undoubtedly, the misconduct of the attorney must be objected to in the lower court, and the attention of that court called to it, at the time; and the facts constituting the misconduct, and the fact that objections were at the time made, must appear from the record in the case. In this case all these facts do fully appear in the affidavit made on the motion for a new trial, and the overruling of the motion for a new trial is assigned as error. Pierce v. Manning, (S. Dak.) 51...