Lunschen v. Ullom

• Decision Date: 24 May 1910
• Citation: 25 S.D. 454,127 N.W. 463
• Parties: R. LUNSCHEN, Plaintiff and appellant, v. J. B. ULLOM, Defendant and respondent.
• Court: South Dakota Supreme Court

25 S.D. 454, 127 N.W. 463 (1910)

R. LUNSCHEN, Plaintiff and appellant v J. B. ULLOM,

Defendant and respondent

South Dakota Supreme Court

Appeal from Circuit Court, Moody County, SD

Hon. Joseph W. Jones, Judge

Affirmed

Coleman & Blewitt

Attorneys for appellant.

Rice & Benson

Attorneys for respondent.

Opinion filed May 24, 1910

SMITH, J.

This is an appeal from the circuit court of Moody county. Plaintiff, who is appellant here, commenced an action to recover the sum of $150 alleged to be due him upon a lease for rental of 80 acres of land. The answer is a general denial, save as to plaintiff's ownership of the property, which is admitted. The record discloses that plaintiff is a resident of Tipton, Iowa, and that one C. F. Claussen, who resides in Moody county in the vicinity of the land in question, was the agent of the plaintiff, with authority to lease and look after the land in question. A jury trial was had and a verdict returned for the defendant. Plaintiff presented to the trial court a motion for a new trial, alleging errors of law occurring at the trial and newly discovered evidence. The motion for a new trial being overruled, plaintiff brings the case to this court for review and presents in the record eight assignments of error. The first of these assignments is that the evidence is insufficient to support the verdict. We have carefully examined the entire record, and find the evidence of the plaintiff's witnesses and that of the defendant's witnesses directly in conflict as to the existence of the alleged verbal lease. It has been so many times held by this court that a verdict based upon conflicting evidence will not be disturbed upon appeal that a citation of the decisions of this court seems unnecessary. The first five assignments of error in the record relate to rulings as to the reception and rejection of evidence. A careful examination of the entire record covered by these assignments satisfies us that no prejudicial error appears. The eighth assignment is the order overruling plaintiff's motion for a new trial. The motion for a new trial was based upon the rulings upon evidence, which are disposed of above, and also upon the ground of newly discovered evidence presented to the trial court by certain affidavits, namely, an affidavit of the plaintiff, alleging that one G. C. Rosin was a material witness for the plaintiff, and was not living in the neighborhood at the time of the trial, and that knowledge of such witness and his testimony came to plaintiff and plaintiff's attorney after the trial of said cause and was not known to them before said trial. Also the affidavit of said Rosin, in which the newly discovered evidence is stated, to-wit:

"That the said defendant, J. B. Ullom, tried, to lease the east half of the northwest quarter of section 13, township 108, range 48, in Moody county, S. D., to this affiant, and that the west eighty of said quarter section was at that time leased to one Jake Fink."

The defendant, Ullom, upon the witness stand, absolutely denied having entered into any contract of lease with the plaintiff, and the effect of this alleged newly discovered evidence would be to impeach the testimony of Ullom. In the case of Wilson v. Seaman, 15 S.D. 103, 87 N.W. 577, this court holds:

"The granting or refusing of a new trial upon the ground of newly discovered evidence is largely in the discretion of the trial court, and unless there has been a manifest abuse of such discretion, this court will not review the action of the trial court upon such motion. Section 5088, subd. 4, Comp. Laws, provides that a new trial may be granted for 'newly discovered evidence, material to the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.' A new trial may be granted where the newly discovered evidence is cumulative, if, in the opinion of the trial court, the evidence would probably produce a different result upon a new trial; but, unless such would probably be the result, a new trial should be denied. In the recent case of Oberlander v. Fixen & Co., 129 Cal. 690, 62 Pac. 254, the Supreme Court of California, in discussing their statute, which is substantially, if not identically, the same as ours, uses the following language: 'It is evident that new evidence, although...