Wakpala State Bank v. Tackett

• Decision Date: 11 October 1926
• Docket Number: 5804
• Citation: 50 S.D. 385,210 N.W. 199
• Parties: WAKPALA STATE BANK OF WAKPALA, Plaintiff and respondent, v. W. H. TACKETT and Isaac Skunk, Defendants, E. W. Rugg, Defendant and appellant.
• Court: South Dakota Supreme Court

50 S.D. 385

210 N.W. 199

WAKPALA STATE BANK OF WAKPALA, Plaintiff and respondent,

v.

W. H. TACKETT and Isaac Skunk, Defendants, E. W. Rugg, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Tripp County, SD Hon. N. D. Burch, Judge #5804--Affirmed Morrison & Skaug, Mobridge, SD Attorneys for Appellant. W. J. Hooper, Gregory, SD Attorney for Respondent. Opinion filed October 11, 1926

MOIRIARTY, C.

This action grows out of the same transactions as were involved in the case of Tackett v. Skunk, 210 N.W. 198, in which the opinion of this court is handed down simultaneously herewith.

From an order denying an application for change of place of trial defendant E. W. Rugg appeals. The application was made by appellant Rugg on the ground of the convenience of witnesses. The affidavits of appellant and one of his attorneys set forth a list of ten witnesses, in addition to the defendants Rugg and Skunk, allege that said witnesses are necessary witnesses to prove appellant's defense, that said witnesses reside in Corson and Walworth counties, show the great distances said witnesses would be required to travel in order to be present at the trial if held in Tripp county, the amount of time which would be consumed in going to and returning from such place of trial, and the great expense which appellant would be required to incur if obliged to secure the attendance of these witnesses at a trial in Tripp county. In these affidavits there is a statement of what appellant expects to prove by these witnesses collectively, but there is no showing of what any individual witness is expected to testify. The statement amounts to saying that appellant expects to prove all the elements of his several defenses by each of these witnesses.

An inspection of appellant's answer shows that one of his defenses is that a certain land sale contract between the defendants Tackett and Skunk is void and of no force or effect, and this he says he can show by these witnesses But in one of the defenses set up in his answer, appellant sets forth in full the findings, conclusions, and decree in the case of Tackett v. Rugg, above referred to, an action in Corson county, adjudging the said contract to be valid. His showing is to the further effect that the defendant Skunk deeded to him the land covered by the contract between Skunk and Tackett, and that he expects to prove by the witnesses named in his affidavit that at the time...