Vassilos v. Arnold

216 N.W. 951, 52 S.D. 167, 1927 S.D. LEXIS 321

Opinion

GATES, J.

Appeal by contestant in a will contest from a judgment in favor of the proponent and from an order denying new trial. This is the second appeal in this case. See 47 S. D. 147, 196 N. W. 545, for the former opinion.

The second trial was had to a jury before the opinion of this court was handed down in State v. Nieuwenhuis, 49 S. D. 181, 207 N. W. 77. That opinion held unconstitutional the portion of section 3564, Rev. Code 1919, which declared that the verdict of a jury in the circuit court, on appeal from the county court, should have the same force and effect as a verdict in an action at law. The situation here is much the same as that in Re Estate of Lansing, 51 S. D. 615, 216 N. W. 353, the opinion in which was handed down on November 30, 1927.

For the reasons stated in that opinion, the judgment and order herein appealed from will be vacated and the cause remanded to the trial court. Unlike the remand) in that case, this case will be remanded with directions to make findings of fact and conclusions of law and to enter judgment in accordance therewith. This is done because the case has been twice tried before the same circuit judge, and we are not convinced that another trial will further enlighten the trial court, nor are we convinced that the trial court, upon the last trial, erred to the prejudice of appellant in excluding evidence.

■CAMPBELL, P. J., and FOLLEY, SHERWOOD, and BURCH, JJ., concur.