Noziska v. Aten

• Decision Date: 17 May 1915
• Docket Number: 3716.
• Parties: NOZISKA et al. v. ATEN.
• Court: South Dakota Supreme Court

152 N.W. 694

35 S.D. 451

NOZISKA et al. v. ATEN.

No. 3716.

Supreme Court of South Dakota

May 17, 1915

Appeal from Circuit Court, Tripp County; William Williamson, Judge.

Action by John C. Noziska and others against A. K. Aten, Jr. Judgment for plaintiffs, and defendant appeals. Affirmed.

E. O Patterson, of Dallas, for appellant.

R. H Molitor, of Winner, for respondents.

WHITING J.

This action was instituted in the name of John C. Noziska and F F. Sinkler, as plaintiffs, and in their complaint they alleged, in substance, as follows: That the defendant is, and was at all times therein mentioned, a duly licensed and practicing attorney at law, holding himself out as such attorney within this state; that plaintiffs employed the defendant, as such attorney, to prosecute a certain action in justice court, on behalf of plaintiffs and against one Mundorf and wife, for the recovery of money claimed to be due for merchandise sold and delivered by plaintiffs to said Mundorfs; that the defendant undertook to prosecute said action in a proper, skillful, and diligent manner as the attorney for these plaintiffs; that the defendant, in prosecuting such action, procured the issuance of a writ of attachment, and, by virtue of such writ of attachment, had certain property of the Mundorfs seized, attached, and taken into the possession of one Holbrook, then a constable in and for the county wherein said action was brought; that these plaintiffs, by an undertaking given under the advice of defendant, indemnified the said Holbrook against loss by reason of said seizure and attachment; that it thereafter appeared that the said Mundorfs were not residents of this state; that thereupon said action, under the advice and procurement of defendant, was abandoned, and another action instituted on behalf of these plaintiffs by said defendant in which said action defendant sought to make service of process on the Mundorfs by advertisement, though no writ of attachment or summons in garnishment was procured or issued in said second action; that, upon such defective service of process and lack thereof, such action was prosecuted to judgment, and the property of Mundorf, seized as aforesaid, and still held by said constable, was sold to satisfy the said judgment, all being done upon the advice of defendant acting as such attorney for plaintiffs; that thereafter Mundorf brought an action in conversion against the constable for the conversion of the property attached and held by him, and recovered judgment for the value of same, and for interest and costs, which said judgment these plaintiffs were compelled to, and did, pay and satisfy in accordance with their undertaking and agreement with said constable to hold him harmless. Plaintiffs sought to recover from the defendant the amount so paid out in satisfaction of the judgment against the said constable. After answer plaintiffs sought leave of court to amend the complaint herein by substituting, in place of John C. Noziska as one of said plaintiffs, the names of John C. Noziska, E. D. Noziska, and D. L. Noziska, as copartners doing business under the firm name and style of Colome Mercantile Company. Leave was granted, and the complaint was amended by the change in the name of the plaintiffs, and by adding an allegation to the effect that the said three parties named as copartners were copartners doing business under the name and style of Colome Mercantile Company, and further amended to show that the undertaking entered into with the constable was the joint undertaking of the said copartnership and Sinkler. Trial was had, and verdict rendered in favor of plaintiffs. Judgment having entered on said verdict, the defendant has appealed to this court from such judgment, and has assigned as error: (1) The granting of the order allowing the amendment of the complaint; (2) two certain rulings of the court sustaining objections to questions asked of the plaintiff Sinkler when a witness upon the stand; (3) the overruling of defendant's motion, made at the close of plaintiffs' case, and at the close of all of the evidence, asking for a directed verdict in favor of defendant.

The two assignments questioning the rulings of the court in excluding evidence need no further attention from this court than to state that, even if erroneous, it is clear the rulings could not have been prejudicial.

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