Bunker v. Taylor

Citations

• 10 S.D. 526
• 74 N.W. 450
• 1898 S.D. LEXIS 31

Syllabus

<p>1. Under Comp. Laws, $ 4939, providing that, when a proceeding fails to conform in any respect to the Code, the court may, in its discretion and on such terms as may be just, permit an amendment, and Section 5093, providing that the court may, on good cause shown, in furtherance of justice extend the time within which acts may he done, or may, after the time limited therefor has expired, fix another time within which an act may be done, the court has power, on the hearing of a motion for a new trial, to permit an amendment to the notice of motion, after the time for giving such notice has expired.</p> <p>2. Where the court allows an amendment to the notice of motion for a new trial, and an “amended notice” is filed, it is an amendment of the old notice, and not a substitution of a new one.</p> <p>3. The allowance of an amendment to the notice of motion for new trial will not be reviewed unless there has béen an abuse of discretion.</p> <p>4. Where, in an action brought by an executrix, a person was made a party defendant in the summons and complaint, but the summons was never served on him, and he never appeared, his testimony was not governed by Comp. Laws, l 5260, providing that, in actions by or against executors, neither “party” shall testify against the other as to any transaction with testator.</p> <p>5. The fact that a witness is interested in the issue of an action is not sufficient, under said statute, to exclude his testimony.</p> <p>6. On motion to exclude evidence on the ground of insufficiency of the answer, the pleading must be liberally construed, and an allegation that plain till knew that defendant was a surety on a note will be taken as a direct allegation of suretyship.</p> <p>7. Where the maker of a note, being insolvent, agreed to pay an independent debt which he owed the payee, if the latter extend the note, the fact of such insolvency did not make the consideration a valid one, so as to discharge a surety on the note.</p>