Minnehaha National Bank v. Torrey

South Dakota Supreme Court

Minnehaha National Bank v. Torrey

74 N.W. 890, 10 S.D. 548, 1898 S.D. LEXIS 34

CourtSouth Dakota Supreme Court

DecidedMarch 16, 1898

StatusPublished

Cited by5 cases

This text of 74 N.W. 890 (Minnehaha National Bank v. Torrey) 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

Minnehaha National Bank v. Torrey, 74 N.W. 890, 10 S.D. 548, 1898 S.D. LEXIS 34 (S.D. 1898).

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Opinion

Corson, P. J.

This case was decided at the present term of this court, and is reported in 10 S. D. 379; 73 N. W. 193. A petition for a rehearing has been filed, and also a motion to modify the judgment of this court by striking out that part thereof directing the court below to enter a judgment in favor of the plaintiff, and substituting therefor an order directing a new trial. The petition for a rehearing is denied, and the motion to modify the judgment is granted.

Upon a careful re-examination of the question as to the cases in which this court should direct a judgment, on a reversal, to be entered in the court below in favor of the party appealing, we are satisfied that in this case this court should have ordered a new trial, and not directed a judgment for the appellant. The discretion of this court of directing the court below to enter judgment for the appellant on a reversal should only be exercised in cases when it is entirely plain, either from the pleadings or from the very nature of the controversy, that the party against whom the reversal is pronounced cannot prevail in the action. It must appear certainly that he cannot. Griffin v. Marquardt, 17 N. Y. 28; Foot v. Insurance Co., 61 N. Y. 571; Muldoon v. [549]*549Pitt, 54 N. Y. 269; Guernsey v. Miller, 80 N. Y. 181. While a majority of this court was of the opinion that upon the evidence presented by the record the issue as to an extension of time was not sustained, this court cannot say that upon a new trial the defendant, may not succeed upon that or some other issue upon making further proof in the case. The judgment of the circuit court will therefore be so modified as to order a new trial.

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Corson, P. J.

This case was decided at the present term of this court, and is reported in 10 S. D. 379; 73 N. W. 193. A petition for a rehearing has been filed, and also a motion to modify the judgment of this court by striking out that part thereof directing the court below to enter a judgment in favor of the plaintiff, and substituting therefor an order directing a new trial. The petition for a rehearing is denied, and the motion to modify the judgment is granted.

Upon a careful re-examination of the question as to the cases in which this court should direct a judgment, on a reversal, to be entered in the court below in favor of the party appealing, we are satisfied that in this case this court should have ordered a new trial, and not directed a judgment for the appellant. The discretion of this court of directing the court below to enter judgment for the appellant on a reversal should only be exercised in cases when it is entirely plain, either from the pleadings or from the very nature of the controversy, that the party against whom the reversal is pronounced cannot prevail in the action. It must appear certainly that he cannot. Griffin v. Marquardt, 17 N. Y. 28; Foot v. Insurance Co., 61 N. Y. 571; Muldoon v. [549]*549Pitt, 54 N. Y. 269; Guernsey v. Miller, 80 N. Y. 181. While a majority of this court was of the opinion that upon the evidence presented by the record the issue as to an extension of time was not sustained, this court cannot say that upon a new trial the defendant, may not succeed upon that or some other issue upon making further proof in the case. The judgment of the circuit court will therefore be so modified as to order a new trial.

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Bluebook (online)

74 N.W. 890, 10 S.D. 548, 1898 S.D. LEXIS 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minnehaha-national-bank-v-torrey-sd-1898.

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