Mt. Terry Min. Co. v. White

• Decision Date: 05 April 1898
• Citation: 10 S.D. 620,74 N.W. 1060
• Parties: MT. TERRY MIN. CO. v. WHITE.
• Court: South Dakota Supreme Court

10 S.D. 620

74 N.W. 1060

MT. TERRY MIN. CO.

v.WHITE.

Supreme Court of South Dakota.

April 5, 1898.

Appeal from circuit court, Lawrence county.

Action by the Mt. Terry Mining Company against Wilmot G. White, administratrix. There was a judgment for plaintiff, and defendant appeals. Reversed.Martin & Mason, for appellant. Edwin Van Cise, for respondent.

HANEY, J.

Plaintiff seeks to recover from the estate of Thomas H. White, deceased, upon an account for money had and received by him as its treasurer. Defendant denies any indebtedness on account of money had and received by deceased, and alleges a full and complete settlement of all claims and demands existing between the parties made prior to White's death. Nathan Halle, called as a witness on behalf of plaintiff, testified to a conversation with deceased touching the balance in his hands as treasurer of the company, but was unable to state the amount of such balance without reference to a book wherein the treasurer had kept his accounts with the company. On cross-examination he was asked this question: “Do you remember the amount independently of this book at all?” He answered, “No, sir.” Thereupon counsel for defendant, after having identified the late treasurer's book, offered as part of Halle's cross-examination a page of the book containing the account referred to by the witness, to which plaintiff objected as “incompetent, immaterial, and not proper cross-examination,” and the objection was sustained. This ruling was clearly erroneous. Where the testimony of a witness in chief is thus based upon, and inseparable from, a memorandum or writing, the opposite party is entitled to such writing as a part of the cross-examination.

When the jury retired for deliberation, the court, against defendant's objection, permitted them to take the complaint and answer. It was said by this court in a recent case: “Without deciding that it would be reversible error in all cases to permit the jury, upon retiring for deliberation, to take the pleadings with them, the court is of the opinion that the statute does not contemplate that it should ever be done. Comp. Laws, § 5052. Pleadings should be construed by the court. Its charge should clearly define the issues of fact to be submitted, and no useful purpose can ever be served by allowing pleadings to be inspected by the jury. On the contrary, confusion and misapprehension of the real issues will usually result from such inspection by persons unacquainted with the rules and principles of pleading. The pleadings are for the court. They should not be taken by the jury under any circumstances.” Harding v. Insurance Soc. (S. D.) 71 N. W. 755. In its charge the court submitted but one issue, namely, what, if...