Ochsenreiter v. George C. Bagley Elevator Co.

• Decision Date: 14 June 1898
• Citation: 11 S.D. 91,75 N.W. 822
• Parties: OCHSENREITER et al. v. GEORGE C. BAGLEY ELEVATOR CO.
• Court: South Dakota Supreme Court

11 S.D. 91

75 N.W. 822

OCHSENREITER et al.

v.GEORGE C. BAGLEY ELEVATOR CO.

Supreme Court of South Dakota.

June 14, 1898.

Appeal from circuit court, Day county; A. W. Campbell, Judge.

Action by L. G. Ochsenreiter and another against the George C. Bagley Elevator Company. Verdict for plaintiffs, and from a judgment and an order denying a motion for a new trial defendant appeals. Affirmed.Frank Sears, for appellant. J. H. Lund and J. H. McCoy, for respondents.

HANEY, J.

This is an action by mortgagees to recover the value of mortgaged grain purchased of the mortgagor by defendant, and converted to its own use. From a judgment for plaintiffs and an order denying a new trial, defendant appealed.

In support of its motion for a new trial on the ground of newly-discovered evidence defendant read the affidavits of the mortgagor and his wife, wherein it is stated that they conveyed certain land to plaintiffs in satisfaction of the indebtedness which the mortgage on the grain in question was given to secure; also the affidavit of its attorney, wherein it is stated that the mortgagor and his wife were for 10 years immediately prior to the commencement of the action residents of the county wherein the cause of action arose and was tried, but had departed therefrom shortly after the suit was begun; that affiant was not aware until after the trial of what such mortgagor and his wife would swear to; that prior to the trial defendant heard rumors to the effect that they would testify as stated in their affidavits, but had no positive knowledge to that effect, and was unable, by the use of reasonable diligence, to procure their evidence upon the trial. There is nothing in the affidavits to indicate that the whereabouts of these witnesses was unknown to defendant. Whether the conveyance mentioned was in payment of the indebtedness secured by plaintiffs' mortgage, or given as collateral security, was an issue raised by the pleadings, known to the defendant from the time its answer was served. Prior to the trial, defendant, as shown by its attorney's affidavit, heard rumors to the effect that the mortgagor and his wife would testify in support of the allegations of its answer on this material issue. They were the only persons aside from the plaintiffs likely to know anything concerning the matter, and ordinary prudence required the procurement of their evidence before proceeding to trial. No reasonable excuse is shown for neglecting to secure such...