Tanderup v. Hansen

• Decision Date: 07 April 1896
• Citation: Tanderup v. Hansen, 8 S.D. 375, 66 N.W. 1073 (S.D. 1896)
• Parties: TANDERUP v. HANSEN.
• Court: South Dakota Supreme Court

66 N.W. 1073

8 S.D. 375

TANDERUP v. HANSEN.

Supreme Court of South Dakota

April 7, 1896

Appeal from circuit court, Turner county; E. G. Smith, Judge.

Action in assumpsit by Jens P. N. Tanderup against Hans P. Hansen. There was a judgment for plaintiff, and defendant appeals. Affirmed.

French & Orvis, for appellant. R. B. Tripp, for respondent.

CORSON P. J.

This is the second appeal taken in this action. The opinion of the court on the former appeal is reported in 58 N.W. 578. The questions of law decided on that appeal have become the law of the case, and must control in all subsequent proceedings. Bank v. Gilman, 3 S. D. 170, 52 N.W. 869; Lumber Co. v. Mitchell (S. D.) 57 N.W. 236; Elliott, App. Proc § 578. On the former appeal the question of the sufficiency of the complaint was involved, and this court held that the facts stated in the first cause of action were sufficient to constitute a good cause of action, and that the evidence offered to support that cause of action should have been admitted by the court, and for the error of the court in excluding such evidence the case was reversed. On the second trial in the circuit court that court very properly followed the decision of this court, and admitted the evidence offered tending to prove that cause of action. So far, therefore, as objections were made to this evidence on the ground that a sufficient cause of action was not stated, they must be disregarded by this court on this appeal. This disposes of the first point made by counsel, namely, that the court below erred in admitting the evidence tending to sustain the first cause of action.

The second point made by counsel for appellant is as follows "The court erred in overruling defendant's motion to direct a verdict in favor of the defendant at the close of all the evidence, for the reason that there was no evidence showing or tending to show that the plaintiff, before commencing this action, notified the defendant of any damage done by his cattle, or the probable amount thereof." Whatever merit there might have been in this point had it been stated in the motion to direct a verdict in the court below, it is not available in this court, for the reason that no such ground was stated in the motion in the trial court. Where such a motion is made, the specific ground upon which the motion is made must be stated. It is due to the court and the opposing counsel that their attention should be called to the precise defect in the evidence or the omission of evidence that the party claims entitles him to the direction of the verdict. It is due to the court to enable it to pass understandingly upon the motion, and it is due to counsel that he may, if possible, supply the defective or omitted evidence, if permitted to do so by the court. The only grounds stated in the motion in this case were: (1) "That no cause of action had been made against the defendant, under the pleadings;" (3) "that under the evidence in this case the plaintiff is not entitled to recover." The second specified ground in no way relates to the ground now relied upon. It will be observed therefore, that the attention of neither the court nor counsel was directed to the defect in the proof now claimed to have existed. Mr. Hayne, in his work on New Trial and Appeal, in section 116, quotes with approval from the opinion of the supreme court of California in Coffey v. Greenfield, 9 Pac. Coast Law J. 38, the following: "It is settled law in this state that a party moving for a nonsuit should state in his motion precisely the grounds on which he relies, so that the attention of the court and the opposite counsel may be particularly directed to the supposed defect in the plaintiff's case. The general ground above stated [that plaintiffs had not introduced any testimony tending to sustain the action] did not comply with the rule, and therefore the court did not err in denying the motion." In Baker v. Joseph, 16 Cal. 173, the court says: "It is next assigned that the court refused to nonsuit the plaintiff, because no demand was proven before suit. But this point, if it could have been well taken below, is not available here; this ground not having been taken before the district court." The motion for a nonsuit in that case "was made on the ground that the evidence did not support or prove a right to recover on either count" in the complaint.

Appellant's third point is as follows: "The court erred in permitting the witness Tanderup to testify, over defendant's objection, with reference to what Jens Christiansen testified to on a former trial of this case, on the ground that no sufficient foundation was laid therefor." On the trial, when the plaintiff was upon the stand as a witness, he testified: "I know a man by the name of Jens Christiansen. He is dead. He testified in this case before Justice Allen, at Hurley. *** Q. At the time of that testimony the defendant, Mr. Hansen, was in court? A. Yes, sir. Q. You may state what he testified to with reference to the defendant's stock going upon your land." The defendant's counsel objected to the question as incompetent, immaterial, and irrelevant, and for the further reason that no proper foundation had been laid for the question. The court overruled the objection, stating at the time that his ruling was pro forma only. The witness then proceeded to give the testimony of the deceased witness, ...