Wingfield, Public Examiner v. Little

168 N.W. 716, 41 S.D. 60, 1918 S.D. LEXIS 132

• Court: South Dakota Supreme Court
• Decided: September 3, 1918
• Docket: File No. 4345
• Status: Published

Opinion

WBITI'NIG, P. J.

The assignments icif error upon this appeal ■raise but one question meriting our consideration. Was there evidence sufficient to support the verdict?

[1] Appellant contends ith-at, as in Drew v. Lawrence, 37 S. D. 620, 159 N. W. 274, we should bold that the jury “failed1 to fairly exercise the reasoning faculty on the facts- before them.” The sole issue herein was whether respondent signed1 the note s-ued -on. He -swore that he did nlc-t; -and while, without being able to see and hear 'the witnesses, it might seem to us that his unsupported statement was overcame by the testimony of the witnesses, called by appellant, the question of the weight to be given his testimony was a question peculiarly for the jury. There was evidence which fairly warranted -the verdict of the jury. Hence, under the well-established rule of this jurisdiction, such verdict will not foe disturbed. Brewing Co. v. Mielenz, 5 Dak. 136, 37 N. W. 728; Jeansch v. Lewis, 1 S. D. 609, 48 N. W. 128; Drew v. Lawrence, supra.

[2] Appellant -lays great stress upon the fact that the bank’s books show that a firm, of which respondent was a member, received credit for the amount of this note upon the books of the bank. We do not consider this fact of much probative force in Support of the claim that respondent signed the note, though such fact might be controlling in an action brought for money had and received.

Appellant asks us to examine the signature attached to the note, and to compare same with admitted signatures of respondent. Among the signatures he would have- us consider are those attached to the answer herein. The record does not disclose that such answer was received in evidence, or that the signatures attached fherto were proven to be those of respondent.

The judgment and order appealed from are affirmed.