Bennett v. Bates

South Dakota Supreme Court

Bennett v. Bates

128 N.W. 123, 26 S.D. 215, 1910 S.D. LEXIS 153

DecidedOctober 4, 1910

StatusPublished

This text of 128 N.W. 123 (Bennett v. Bates) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bennett v. Bates, 128 N.W. 123, 26 S.D. 215, 1910 S.D. LEXIS 153 (S.D. 1910).

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Opinion

EIANEY, J.

This action was instituted to recover the value of certain merchandise alleged to have been-sold and delivered to the defendants, as partners doing business under the firm name and 'style of C. E. Bates. Defendant Kempthorne answered, denying each and every allegation of the complaint. The sale and delivery of the goods to Bates was clearly established; the only controversy being as to whether Kempthorne was liable as a member of the alleged partnership. At the close of all the evidence, the court, on motion of the plaintiff, directed a verdict in his favor for the amount claimed. Defendant Kempthorne appealed from the judgment entered thereon.

Respondent having served and filed an additional abstract, which conflicts with the appellant’s abstract in numerous substantial respects, this cause cannot be properly considered without referring to the original record. Such record not having been received by the clerk of this court, appellant’s assignments of error stand unsupported, and the presumption in favor of the regularity of a trial court’s proceedings must prevail.

The judgment appealed from is affirmed.

McCOY, J., taking no- part in this decision.

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EIANEY, J.

This action was instituted to recover the value of certain merchandise alleged to have been-sold and delivered to the defendants, as partners doing business under the firm name and 'style of C. E. Bates. Defendant Kempthorne answered, denying each and every allegation of the complaint. The sale and delivery of the goods to Bates was clearly established; the only controversy being as to whether Kempthorne was liable as a member of the alleged partnership. At the close of all the evidence, the court, on motion of the plaintiff, directed a verdict in his favor for the amount claimed. Defendant Kempthorne appealed from the judgment entered thereon.

Respondent having served and filed an additional abstract, which conflicts with the appellant’s abstract in numerous substantial respects, this cause cannot be properly considered without referring to the original record. Such record not having been received by the clerk of this court, appellant’s assignments of error stand unsupported, and the presumption in favor of the regularity of a trial court’s proceedings must prevail.

The judgment appealed from is affirmed.

McCOY, J., taking no- part in this decision.

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Bluebook (online)

128 N.W. 123, 26 S.D. 215, 1910 S.D. LEXIS 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-bates-sd-1910.