First Nat. Bank v. Calkins

Citations

• 16 S.D. 445
• 93 N.W. 646
• 1903 S.D. LEXIS 102

Syllabus

<p>1. Comp. Laws, § 4652, defines a creditor as one in whose favor an obligation exists, by reason of which he is, or may become, entitled to the payment of money. Held, that a seller, as to whom the sale was void by reason of his mental incapacity, was a creditor of the buyer so as to render a chattel mortgage on the property given by the buyer to a third person presumptively fraudulent, as against the seller, because the buyer had been permitted by the mortgagee to dispose of the property for his own benefit.</p> <p>2. It is error to permit an amendment of a pleading increasing the amount of the recovery prayed, to conform to the verdict, without setting aside the verdict and granting a new trial on payment of costs.</p> <p>3. Where a judgmentis erroneous because exceeding the amount of the recovery prayed, a new trial will be directed on appeal unless the respondent remits the excess.</p> <p>4. Comp. Laws, § 5063, relating to the recovery of specific personal property, provides that the jury must find the value of the property, and if so instructed, the value of specific portions thereof. Section 5099 authorizes entry of judgment for the possession, or for the recovery of possession, or the value thereof in case delivery cannot be had. Held, that a verdict finding the value of the property in the aggregate was not erroneous, in the absence of an instruction to find the value of each item separately, or demand therefor.</p> <p>5. Where on appeal a remittitur of $1,210 is ordered from a judgment for $5,170, costs will be allowed the appellant.</p>