Wilson v. Seaman

• Decision Date: 02 October 1901
• Citation: 15 S.D. 103,87 N.W. 577
• Parties: CHRISTIE A. WILSON, Plaintiff and respondent, v. FRANK F. SEAMAN, Defendant and appellant.
• Court: South Dakota Supreme Court

15 S.D. 103, 87 N.W. 577 (1901)

CHRISTIE A. WILSON,

Plaintiff and respondent,

v.FRANK F. SEAMAN,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Sanborn County, SD

Hon. Frank B. Smith, Judge

Affirmed

Coe I. Crawford

Attorneys for appellant.

L. J. Martin and T. H. Null

Attorneys for respondent.

Opinion filed October 2, 1901

CORSON, J.

This is an action to recover $207.20, the balance alleged to be due plaintiff upon a promissory note executed by the defendant. Verdict and judgment for the plaintiff, and the defendant appeals.

The appellant relies upon three grounds for a reversal of the judgment: (1) That the evidence is insufficient to sustain the verdict; (2) newly-discovered evidence; (3) that the verdict was the result of prejudice on the part of the jury against the defendant. The plaintiff in her complaint, alleges that the defendant, on or about the 1st day of November, 1896, made and delivered to her his certain promissory note in writing, and thereby promised to pay her the sum of $170.59 one year from date, with interest at the rate of 10 per cent. per annum; that the defendant has not paid said note, nor any part thereof, except the sum of $11.80, and that there is now due the plaintiff the sum of $207.20, and interest thereon from the commencement of the action; and further avers that the note was lost or mislaid, and that she did not then have it in her possession. The defendant admitted the execution and delivery of a note of Christie Wilson Rovery for the amount mentioned, payable in one year from its date, with interest at the rate of 10 per cent, per annum; and avers that on July 25, 1898, he paid $10 thereon; in December, 1898, he paid $1.80 and on January 10, 1899, he paid the sum of $170 and that he tendered the balance due before the commencement of the action. It appears from the evidence that the plaintiff was sometimes known as Christie A. Wilson, and sometimes as Christie Wilson Rovery. The appellant contends in support of his first point that the evidence fails to show when the note upon which plaintiff claims became due, and it fails to show what amount’ was due. It is insisted, on the part of the respondent, that m the specification of particulars in which the evidence is insufficient to support the verdict no such ground is stated, and that therefore the defendant is precluded from presenting any such ground in this court. In the specification of errors it is stated that the evidence is insufficient to sustain the verdict in favor of the plaintiff, because it shows that the indebtedness which this action was brought to recover was paid before the commencement of the action; because the damages for which the jury returned a verdict against the defendant were excessive; and because the verdict is against the law and the instructions of the court. It will be noticed in this specification of error the ground now presented is not mentioned, and we are therefore inclined to agree with the respondent that the contention of the appellant cannot be considered. Again, the defendant admitted that he executed a note substantially as set out in the complaint, except that it was executed to Christie Wilson Rovery instead of Christie A. Wilson.

The...