Farran v. Nagel

207 N.W. 58, 49 S.D. 340, 1926 S.D. LEXIS 10

Opinion

DILLON, J.

This is an action brought to recover possession of three young heifers. The parties to the action were close neighbors. Plaintiff was absent from his farm for about a month, and upon his return he missed the cattle in dispute, and claims to have discovered them shortly afterwards in the possession of defendant. There is direct conflict in all of the evidence offered to prove the ownership of the three heifers. The jury was properly instructed by the trial court, and no exception was taken. The rule is well settled in this state that, where there is conflict in the evidence, and the credibility of the witnesses is involved, and a motion for a new trial has beerj denied, as was done in this case, the verdict will not be disturbed on appeal for insufficiency of the evidence. Weibel v. Gardner, 45 S. D. 474, 188 N. W. 741; Schmidt v. Carpenter, 27 S. D. 412, 131 N. W. 723, Ann. Cas. 1913D, 2 Am. 296; Gartner v. Mohan, 59 S. D. 202, 163 N. W. 674: Wingfield v. Little, 41 S. D. 60, 168 N. W. 716.

The remaining assignments have to do with the reception and rejection of evidence over the objection of appellant. These assignments have all been examined, and we fail to find any prejudicial error.

The judgment and order of the lower court are affirmed.

CAMPBELL,, J., concurs in the result.