Unzelmann v. Shelton

• Decision Date: 31 May 1905
• Citation: 19 S.D. 389,103 N.W. 646
• Parties: JOHN C. UNZELMANN, Plaintiff and appellant, v. MARTHA A. SHELTON, Defendant and respondent.
• Court: South Dakota Supreme Court

19 S.D. 389

103 N.W. 646

JOHN C. UNZELMANN, Plaintiff and appellant,

v.

MARTHA A. SHELTON, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Moody County, SD Hon. Joseph W. Jones, Judge Affirmed Williamson & Cole Attorneys for appellant. Joe Kirby Attorneys for respondent. Opinion filed May 31, 1905

CORSON, P. J.

This is an action to recover the possession of about 15 acres of land, and for damages for its use and occupation.

The case was tried to a jury, and, the verdict and judgment being in favor of the defendant, the plaintiff has appealed. The controversy in the case is as to the location of the original government corner, as established by the United States deputy surveyor by the original government survey, between the southwest and southeast corner of the two quarter sections. The plaintiff claimed the southwest quarter, and the defendant the southeast quarter of the section.

It is contended by the appellant that the evidence was insufficient to justify the verdict of the jury, and that the court erred in its instruction to the jury. It seems to be the theory of counsel for the appellant that this court will review the evidence and determine as to its weight. This theory is clearly incorrect as applied to a case tried by a jury. In such cases, where the evidence is conflicting, this court will not weigh the evidence, or go further than to determine therefrom whether or not the successful party has given sufficient legal evidence to sustain the verdict, without regard to the evidence given on the part of the other party, except so far as such evidence tends to sustain his case. Jeansch v. Lewis,(1891). In a case tried to a jury, therefore, this court will not review the evidence with the view of determining its weight, but to simply ascertain whether or not there is sufficient legal evidence to support the verdict of the jury, assuming it to be uncontradicted, as the jury are the exclusive judges of the weight of the evidence and the credibility of the witnesses, subject to the exercise by the trial court of its second judicial discretion in granting a new trial, where in its opinion the weight of the evidence is so strongly in favor of the losing party that justice requires the granting of a new trial; and the decision of the trial court in the exercise of its discretion in granting or refusing a new trial will not be disturbed, unless, in the opinion of this court, there has been a manifest abuse of such discretion. Cannon et al. v. Deming,(1892); Walker v. McCaull,(1900); Weiss v. Evans,(1900); Brewing Co. v. Mielenz, 5 Dak. 136, 37 N.W. 728. A different rule is followed by this court in cases tried by the court without a jury. In such cases this court will review the evidence for the purpose of ascertaining whether or not the findings of the trial court are supported by the evidence, and, in case there is a clear preponderance of the same against the findings of the trial court, its decision will be reversed and a new trial ordered. In Randall v. Burk Twp.,(1893), the rule is thus stated:

“On such review of the evidence, this court will presume that the decision of the trial court or referee upon the weight...