Corson, P. J.
This is am action for damages alleged to have been caused by the negligence of defendants. The action was tried before a jury, and a verdict and judgment rendered for plaintiff. A motion for a new trial was made and overruled. From the judgment and order overruling the motion for a new trial, defendants appeal to this court. Three questions are presented by the assignment of errors, namely: (1) Does the verdict, in the form it was rendered by the jury, sustain the judgment? (2) did the circuit court err in denying the motion for a new trial without hearing the motion upon the merits? and (3) was the evidence sufficient to justify the verdict?
1. The verdict rendered by the jury is as follows: “We, [611] the jury in the above entitled action, find all the issues in favor of the plaintiff and against the defendant, and assess his damages at §180.00.” Upon this verdict, judgment was entered against both defendants. The defect in the verdict complained of is that the jury used the word “defendant” instead of “defendants.” As the action was against the two defendants as copartners, and no question was made on the trial as to their liability as copartners, if liable at all we think the omission by the jury to add the letter “s” to “defendant” was simply a clerical error that the court might properly have corrected had its attention been called to it, and was properly disregarded by the court below. The intention of the jury was clear to the court, as it was stipulated at the commencement of the trial, after dismissing as to defendant Lindner, that the action should ‘ ‘proceed against Knute Lewis and Ben Lewis as copartners under the firm name of Lewis Bros.” There being no question, then, in the case as to the liability of one defendant independent of the other, the court properly construed the word ‘ ‘defendant” to mean the firm, and that such was the intention of the jury. Verdicts are to receive a reasonable construction, and such as will carry out the intention of the jury. Kelsey v. Railroad Co., 1 S. D. 80, 45 N. W. Rep. 204.
2. It appears from the record that the case was tried before the Honorable James Spencer, one of the judges of the territorial court, and that the motion for a new trial was made and argued before him while a member of that court, but that no formal order was signed by him or record made in his court showing that he had ever decided the motion. When the present state circuit judge came upon the bench, the motion was renewed before him. After several postponements, the matter came on for hearing June 17, 1890, by stipulation. At this hearing the attorney for the plaintiff read to the court certain letters from ex-Judge Spencer and the former clerk of his court, and affidavits tending to prove that Judge Spencer had before his retirement from the bench passed upon the motion, and denied it. Thereupon the circuit court made an order overruling the motion for a new trial, stating in said order that [612] it finds that the motion had been decided by Judge Spencer, and overruled. It is contended by counsel for defendants that as the plaintiff had by his counsel stipulated “that the said motion for a new trial, and the proceedings thereon, be submitted to and argued before the circuit court,” the circuit cou”t should have heard the motion upon the merits and that it was error in that court to take into consideration the action had in the matter before Judge Spencer. The rule is that a motion once heard and decided by a court cannot be renewed in the same court without leave of the court; and we apprehend this rule applies as well to cases where there has been a change of judges as when the motion is made before the same judge. Hence the circuit court, being the successor of the district court, and Judge Andrews being the successor of Judge Spencer, the said circuit court, when, satisfied that the motion had been heard and decided by Judge Spencer, before whom the case wfis tried, very properly refused to hear i b again. The order signed by the judge, or the records of the court, would have been the best evidence of the decision of the court; but, when it was shown that these did not exist, it was competent to establish the fact that a decision had been made by other evidence; and as the letters of Judge Spencer and of his former clerk, and affidavits, seem to have been received without objection on the part of defendants’ attorneys, there was no error in the court holding them sufficient to establish the fact, and basing its denial of the motion upon them. The stipulation was mot binding upon the circuit judge, and it was within his discretion wnether or not he would again hear a motion heard and determined by his predecessor on the bench; and, having so refused to hear it, we cannot say that he did not rightly exercise his disc: etion in the matter.
3. This brings us to the last question presented. There are three essential elements constituting plaintiff’s cause of action necessary for him to establish by legal evidence to entitle him to recover, namely:
Free access — add to your briefcase to read the full text and ask questions with AI
Corson, P. J.
This is am action for damages alleged to have been caused by the negligence of defendants. The action was tried before a jury, and a verdict and judgment rendered for plaintiff. A motion for a new trial was made and overruled. From the judgment and order overruling the motion for a new trial, defendants appeal to this court. Three questions are presented by the assignment of errors, namely: (1) Does the verdict, in the form it was rendered by the jury, sustain the judgment? (2) did the circuit court err in denying the motion for a new trial without hearing the motion upon the merits? and (3) was the evidence sufficient to justify the verdict?
1. The verdict rendered by the jury is as follows: “We, [611] the jury in the above entitled action, find all the issues in favor of the plaintiff and against the defendant, and assess his damages at §180.00.” Upon this verdict, judgment was entered against both defendants. The defect in the verdict complained of is that the jury used the word “defendant” instead of “defendants.” As the action was against the two defendants as copartners, and no question was made on the trial as to their liability as copartners, if liable at all we think the omission by the jury to add the letter “s” to “defendant” was simply a clerical error that the court might properly have corrected had its attention been called to it, and was properly disregarded by the court below. The intention of the jury was clear to the court, as it was stipulated at the commencement of the trial, after dismissing as to defendant Lindner, that the action should ‘ ‘proceed against Knute Lewis and Ben Lewis as copartners under the firm name of Lewis Bros.” There being no question, then, in the case as to the liability of one defendant independent of the other, the court properly construed the word ‘ ‘defendant” to mean the firm, and that such was the intention of the jury. Verdicts are to receive a reasonable construction, and such as will carry out the intention of the jury. Kelsey v. Railroad Co., 1 S. D. 80, 45 N. W. Rep. 204.
2. It appears from the record that the case was tried before the Honorable James Spencer, one of the judges of the territorial court, and that the motion for a new trial was made and argued before him while a member of that court, but that no formal order was signed by him or record made in his court showing that he had ever decided the motion. When the present state circuit judge came upon the bench, the motion was renewed before him. After several postponements, the matter came on for hearing June 17, 1890, by stipulation. At this hearing the attorney for the plaintiff read to the court certain letters from ex-Judge Spencer and the former clerk of his court, and affidavits tending to prove that Judge Spencer had before his retirement from the bench passed upon the motion, and denied it. Thereupon the circuit court made an order overruling the motion for a new trial, stating in said order that [612] it finds that the motion had been decided by Judge Spencer, and overruled. It is contended by counsel for defendants that as the plaintiff had by his counsel stipulated “that the said motion for a new trial, and the proceedings thereon, be submitted to and argued before the circuit court,” the circuit cou”t should have heard the motion upon the merits and that it was error in that court to take into consideration the action had in the matter before Judge Spencer. The rule is that a motion once heard and decided by a court cannot be renewed in the same court without leave of the court; and we apprehend this rule applies as well to cases where there has been a change of judges as when the motion is made before the same judge. Hence the circuit court, being the successor of the district court, and Judge Andrews being the successor of Judge Spencer, the said circuit court, when, satisfied that the motion had been heard and decided by Judge Spencer, before whom the case wfis tried, very properly refused to hear i b again. The order signed by the judge, or the records of the court, would have been the best evidence of the decision of the court; but, when it was shown that these did not exist, it was competent to establish the fact that a decision had been made by other evidence; and as the letters of Judge Spencer and of his former clerk, and affidavits, seem to have been received without objection on the part of defendants’ attorneys, there was no error in the court holding them sufficient to establish the fact, and basing its denial of the motion upon them. The stipulation was mot binding upon the circuit judge, and it was within his discretion wnether or not he would again hear a motion heard and determined by his predecessor on the bench; and, having so refused to hear it, we cannot say that he did not rightly exercise his disc: etion in the matter.
3. This brings us to the last question presented. There are three essential elements constituting plaintiff’s cause of action necessary for him to establish by legal evidence to entitle him to recover, namely:
(1) The injury complained of; (2) the negligence of de•fendants; and (3) the damages resulting therefrom. All these [613] are questions of fact for the jury, and are usually to be determined by them. An examination of the evidence discloses the fact that upon, each and all of these questions plaintiff introduced evidence, and such as in our judgment authorized' the jury in finding a verdict for the plaintiff. There was, it is true, a conflict in the evidence; but this court will not weigh such conflicting evidence, or go further than to determine therefrom whether or not plaintiff has given sufficient legal evidence to sustain the verdict without regard to the evidence given on the part of the defendants, except so far as such evidence tends to sustain plaintiff’s case. The jury have the benefit of a personal examination of the witnesses, and are therefore better qualified to say what weight should be given to their testimony than this court can be. The rule to be applied to such cases is well stated in Brewing Co. v. Mielenz, 5 Dak. 136, 37 N. W. Rep. 728, as follows: “In considering the verdict of a jury in any particular case, to determine whether or not whether it is sustained by the evidence, we are not to speculate or query how we would have viewed the evidence and testimony, or what verdict we would have rendered, had we been of the jury. The real and only question to be solved and answered is, is there any legal evidence upon which the verdict can proporly be based, and the conclusions embraced in and covered by it be fairly reached? It is the province of the jury to weigh and pass upon the evidence; to reconcile conflicting testimony; to determine the truth or value of evidence; to ascertain and declare, from all of the evidence and testimony, the facts of the case; and from the facts, when ascertained by them, and the law as given to them by the court, to arrive at and announce their decision, which is their verdict. And we cannot determine what specific evidence they relied upon in reaching that verdict, nor how they reconciled or adjusted conflicting evidence or testimony, nor just what they rejected or doubted, nor the precise weight or effect they gave to any particular * * * item of evidence or testimony. * * * This court will, as a general rule, only ask and determine, is there any legal evidence or testimony which fairly warrants the verdict of the [614] jury? If there is, particularly in a case where the evidence is conflicting, the verdict will not be disturbed; and if .there is not, it will be set aside. ” That this case was fairly submitted to the jury by the court below is apparent from the fact that no exceptions were taken by defendants to its charge to the jury. No question as to the honesty or integrity of the jury is suggested. Finding no error in the record, the judgment of the court bélow is affirmed.
Kellam, J., concurring.