Warder, Bushnell & Glessner Co. v. Ingli
| Decision Date | 25 June 1890 |
| Citation | 1 S.D. 155,46 N.W. 181 |
| Court | South Dakota Supreme Court |
| Parties | Warder, Bushnell & Glessner Co. v. Ingli. |
1. In an action for the recovery of one new Champion binder, plaintiff's evidence showed that its business was “manufacturing these machines;” that this particular machine was manufactured by plaintiff; that “this machine in controversy” was shipped by plaintiff to its agent at Britton for sale. Held, that such evidence established prima facie ownership in plaintiff, and it was error in the court below to direct a verdict for defendant on the ground that plaintiff had shown no evidence of its title to the property.
2. Where evidence relevant to the issue being tried is received and admitted without objection, and no motion made to strike out, such evidence cannot be objected to on appeal, nor its probative force questioned. Failure to object, or to move to strike out, is a waiver of objection.
Appeal from district court, Day county.Taubman & Potter, for appellant. S. B. Van Buskirk, for respondent.
On the trial of this action, which was for the recovery of the possession of one new Champion binder, the court, at the conclusion of plaintiff's evidence, directed a verdict in favor of the then defendant, William J. Ingli, since deceased, for the reason that plaintiff had shown no evidence of its title to the property in question. This ruling, and a refusal to grant a new trial therefor, constitute the alleged error, to review which this appeal is brought.
There was evidence, received without objection, tending to show that plaintiff's business was “manufacturing these machines;” that this particular machine was manufactured by plaintiff; that “this machine in controversy” was shipped by plaintiff to their agent, Ackerson, at Britton, and that it was received by him as such agent, and was first seen by defendant, Ingli, in the warehouse or sheds of such agent, Ackerson; that defendant, Ingli, was then in the employ of said Ackerson, acting as agent for the sale of the Champion machines; and that he assisted in unboxing this particular machine. We are unable to see why this evidence, uncontradicted, would not make a prima facie case of ownership in plaintiff at the time of the alleged purchase of the machine by defendant, Ingli, of their agent, Ackerson. The only evidence tending to controvert it was that drawn from plaintiff's witnesses on their cross-examination, and to what extent such evidence impaired the force of the...
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Southern Pac. Co. v. Hall
... ... 154, 163, 44 P. 423, and 46 P. 52, ... 726; Warder, Bushnell & Glessner Co. v. Ingli, 1 ... S.D. 155, 157, 46 N.W. 181 ... ...
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McLaughlin v. Wheeler
...testimony, if relevant to the issue being tried, admitted without objection, becomes competent for the purposes of the case. Warder v. Ingli, 1 S.D. 155; 46 NW 181. The fact that the evidence is made incompetent by statute would not, we think, defeat the application of the rule, where the p......
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Merchants Nat. Bank v. Stebbins
...from the court.” Railway Co. v. Healy, 86 Fed. 245, 30 C.C.A. 11; Pirie v. Gillitt, 2 ND 255, 50 N.W. 710; Warder, Bushnell & Glessner Co. v. Ingli, 1 SD 155, 46 N.W. 181 (1890); Bates v. Fremont, E. & M. V. R. Co., 4 SD 394, 57 N.W. 72 (1893); Slattery v. Donnelly, 1 ND 264, 47 N.W. Upon a......
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Griswold Linseed Oil Co. v. Lee
...that court, counsel for respondent insist that it is now too late to make the objection in this court, and cites Warder, Bushnell & Glessner Co. v. Ingli, 1 S.D. 155, 46 NW 181, (decided by this court,) as authority for their position. We held in that case that, where incompetent but releva......