Security State Bank v. Bank of Centerville
| Decision Date | 14 May 1923 |
| Docket Number | 5089 |
| Citation | 193 N.W. 670,46 S.D. 440 |
| Parties | SECURITY STATE BANK OF BERESFORD, Plaintiff and respondent, v. BANK OF CENTERVILLE, Defendants and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Turner County, SD
#5089--Order affirmed
Bogue & Bogue, Parker, SD
Attorneys for Appellant.
Caldwell & Caldwell, Sioux Falls, SD
Attorneys for Respondent.
This action is on a certificate of deposit for $9,375, issued by the Bank of Centerville on October 3, 1919, to W. W. Ross, due 12 months after date. The certificate was indorsed and delivered to plaintiff for value, and before due. The names of W. W. Ross and Wm. M. Colby Were written on the back of the certificate when plaintiff received it. The certificate was not paid when due. Suit was brought.
Defendant Ross denied he eve indorsed o delivered the certificate to any person and allege his name indorsed thereon was a forgery. The case was tried a a jury. Verdict was rendered for defendant.
Plaintiff moved to set aside the verdict and or a new trial, on the ground of insufficiency of the evidence to justify the verdict, because the only question submitted to the jury was "did W. W. Ross indorse this certificate," and
Motion for new trial granted and defendant appeals.
The only question presented by this appeal is: "Did the trial court abuse its discretion by granting a new trial?"
This court has said that "an application for a new trial upon the ground of the insufficiency of the evidence to support the verdict is addressed to the sound discretion of the trial judge, and his discretion will only be reviewed by this court in case of manifest abase of that discretion." Distad v. Shanklin, 75 N.W. 205; Hodges v. Bierlein, 56 N.W. 811; Alt v. Railway Co., 57 N.W. 1126; Grant v. Grant, 60 N.W. 743; Esshom v. Hotel Co., 63 N.W. 229; Gotzian & Co. v. McCollum, 65 N.W. 1068; 16 Am. & Eng. Enc. Law 693; Root v. Bingham, 128 N.W. 132; Gamble v. Keyes, 166 N.W. 134; Schoof v. Hoagland, 183 N.W. 132; Finch v. Martin, 83 N.W. 263.
And has further said: "A clearer case is required to authorize the reversal of an order granting" a motion for a "new trial than is required to reverse an order overruling" such motion. Hodges v. Bierlein, supra; Halpin v. Nelson, 76 Iowa 427, 41 N.W. 62; Blewett v. Hendry, 156 N.W. 795.
The only question presented to the jury was whether the name of W. W. Ross on the back of the certificate of deposit, "Exhibit A," was his genuine signature. Upon this question 10 witnesses gave testimony. The testimony of the cashiers of all three banks in the town near which defendant had lived for over 20 years, who were all well acquainted with defendant, two of them for 20 years or more, men, who had seen him write his name frequently, cashed his checks often, for years, with two of which banks defendant had done his quite extensive banking business or many years, and with one of which he was then doing his banking, was that they each considered it the signature of defendant and would have paid money on it if presented at their banks. Three cashiers of banks in the city where the case was tried testified according to their best judgment it was defendant's genuine signature. One expert testified it was without doubt defendant's genuine signature. Another witness testified he personally saw defendant sign that name upon that certificate. In opposition to this, defendant testified alone that t was not his signature. But he also testified that he could not tell by the signature itself whether he signed it or not and could only tell by looking at the contents of the paper; that he could not always tell his own signature, and that this signature looked like his writing. Defendant's son, whom he offered as a witness, testified the signature looked like defendant's, and he could not tell whether it was or not. He was sure it was not signed on the day plaintiff claimed it was signed, and he never saw defendant sign it.
Considering defendant's interest in this case, the peculiar nature of his testimony, the great preponderance in the number of unimpeached witnesses against him, we cannot say the lower court abused its discretion in granting a new trial.
The trial judge saw most of the witnesses, noted their demeanor on the witness stand; heard them testify, and was in a better position to correctly weigh their evidence than we are. When, in his view, the interests of justice will be subserved by granting a new trial, that decision should not be lightly overturned by this court.
We cannot agree with our colleague at this appeal presents only the question whether or not the evidence is sufficient to sustain the verdict, or that it is to be determined by us on our belief or disbelief in the veracity of one of the witnesses produced by the plaintiff.
It is settled law in this state that the sole question before the appellate court on an appeal from a order granting a new trial is: Did the trial court abuse its discretion in granting a new trial? If it did not, the trial court must be sustained. Distad v. Shanklin, supra, and other decisions of this court there cited.
Neither can we agree that the question presented to this court on appeal is the same as that presented to a trial judge on motion for a new trial. In considering this question, the late Judge Corson said:
Western Surety Co. v. Boettcher, 165 N.W. 381; Rex Buggy Co. v. Dinneen, 122 N.W. 433; Finch v. Martin, 83 N.W. 263; Dickinson v. Hahn, 19 N.W. 1034; Ross v. Robertson, 94 N.W. 765; Clifford v. Latham, 103 N.W. 642; Unzelmann v. Shelton, 103 N.W. 646; Schoof v. Hoagland, 183 N.W. 132.
In Drew v. Lawrence, 159 N.W. 276, this court said:
"Inasmuch as the law presumes that a new trial of a cause will result in a just judgment, there is vested in the trial courts a wide discretion to set aside verdicts and grant new trials, which discretion will seldom he disturbed by an appellate court, even though from reading the record on appeal, it appears that the jurymen fairly exercised the reasoning faculty in arriving at their verdict."
Shuman v. Lesmeister, 158 N.W. 271; Ede v. Ward, 143 N.W. 269.
We are unable to see how the return of this case to the circuit court, to be tried before another jury can be a denial of the constitutional right to a jury trial.
The order of the circuit court, granting a new trial, is affirmed.
In my judgment the order granting a new trial should be reversed. The case was tried to a jury; a verdict was returned for the defendant. On March 24, 1921, judgment was rendered in favor of the defendant, dismissing the cause of action. Thereafter a motion for a new trial was granted on the ground of insufficiency of the evidence.
The plaintiff could not recover without proof of the indorsement of the certificate of deposit. The four notes purporting to be signed by W. W. Ross and the indorsement on the certificate of deposit were all before the jury. They had the opportunity to compare the genuine signature with the alleged forgeries. The fact that a number of witnesses gave the opinion that they believed the same person signed all of them was not conclusive, nor binding on the jury. City National Bank v. O'Leary (S. D.), 190 N.W. 1016.
Courts are found declaring that the evidence of experts is so weak and decrepit as scarcely to deserve a place in our jurisprudence, and much too loose and unsatisfactory to 1ay a foundation for judicial decision. State v. Ryno, 68 Kan. 348 74 Pac. 1114, 64 LRA 303.
The rule in this state is well established that when two rational results may be...
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