Connor v. Corson

Citations

• 13 S.D. 550
• 83 N.W. 588
• 1900 S.D. LEXIS 186

Syllabus

<p>1. under Comp. Laws, jj’5034, which provides that “there need he but one notice of trial, and one note of issue from either party, and the action must then remain on the calendar until disposed of,” the granting of a new trial does not render it necessary to serve a second notice of trial; the effect being to restore the cause to the calendar as it stood before the first trial.</p> <p>2. An order sustaining a demurrer to a complaint, hut giving the plaintiff leave to serve and file an amended complaint, does not render the questions presented by the demurrer res judicata, or constitute a bar to the further prosecution of the action on the amended complaint, if not demurred to, although it may be subject to the same, or some of the same objections assigned as grounds of demurrer to the original complaint.</p> <p>3. In an action on a sheriff’s bond, where it is shown by the testimony of the county auditor, who is made the legal custodian of such bond, that the original cannot be found after diligent search, the record of the bond in the office of the register of deeds, made in compliance with Comp. Laws, § 1377, is admissible to prove its execution, under Section 53C7, which makes every instrument in writing which is acknowledged, proved, and duly recorded admissible as evidence without further proof, and Section 5308, which makes the record of such instruments admissible where the original is lost.</p> <p>4. It is usually within the sound discretion of the trial court to limit the cross-examination of a witness to the subject matter of his examination in chief, and to require the party to make the witness his own if he desires to go into other matters, and such action will not be held ground for reversal unless an abuse of discretion is shown.</p> <p>5. A judgment against a sheriff for conversion, based on a seizure of property shown to have been made under an attachment against another person, and under color of his office, is prima facie, but not conclusive, pro