Dunn v. National Bank

Citations

• 11 S.D. 305
• 77 N.W. 111
• 1898 S.D. LEXIS 119

Syllabus

<p>1. The justification of the sureties on an undertaking on appeal will be deemed sufficient, where, on being excepted to, they appeared before a justice of the peace in pursuance of notice to respondent, and filed a new undertaking, which was approved by such justice.</p> <p>2. Under Comp. Laws, § 4886, authorizing the intervention of any person interested in the matter in litigation adversely to either party or to both, the payee named in a certificate of deposit, who claimed to be the owner thereof, was entitled to intervene in an action thereon by the holder, who was alleged to have obtained it through fraud.</p> <p>S. The evidence may be reviewed on appeal, without a motion for a new trial, for the purpose of determining alleged error in directing a verdict. ,</p> <p>4. Where it appeared, in an action on a certificate of deposit, that such certificate had been transferred to plaintiff by one who had obtained it from the original owner through fraud, plaintiff became charged with the burden of proving both his good faith and the fact that he paid a valuable consideration therefor.</p> <p>5. In an action on a certificate of deposit by one claiming as indorsee, defendant and the payee, who intervened, both claimed that the latter was the owner thereof, and that it had been obtained from him through fraud. It appeared from the evidence that the certificate in question was taken from intervener, in a gambling house, by certain persons, under pretense that he had lost it in a game, and transferred by the proprietor of such house to plaintiff, who was a pawnbroker, doing business in the same block, and who paid but a small sum thereon at the time, and afterwards went oh the appearance bond of such gambler, when arrested, on complaint of intervener, for fraud. It also appeared that plaintiff was well acquainted with such gambler, and knew in what business he was engaged, and that, though intervener was present when sucl} certificate was transferred to him, ho made no