Jeansch v. Lewis

Citations

• 1 S.D. 609
• 48 N.W. 128
• 1891 S.D. LEXIS 63

Syllabus

<p>1. Whore an action is being prosecuted ag'ainst two defendants as copartners, and no question is raised as to the liability of one independently of the other, and where it was stspulatod at the commencement of the trial, after dismissing as to a third defendant, .“that the action proceed” against the other two “as copartners under the firm name of Lewis Bros.,” held, that a verdict in favor of plaintiff “and against the defendant,” etc., was properly construed by the court as a verdict ag'ainst the two, or the firm, and a judgment entered against both defendants upon it was valid, and the ommission of the letter “s” in defendant was a mere clerical error.</p> <p>2. Verdicts are to receive a reasonable construction, and as such will carry out the intention of the jury; and where, as in this case, the intention of the jury was clear to the court, it was its duty to disregard a merely ' clerical error, which it would at once have corrected had its attention been called to it.</p> <p>3. Where a motion for a now trial was argued and submitted to the judge of the territorial court who tried the cause, but no order or record of any decision was made, and the motion was brought up before a state circut judge who succeeded him, held, the circuit judge properly received evidence showing such territorial judge had actually overruled the motion. Bennett, J., dissenting.</p> <p>4. Held, further, that a motion once heard and decided by a court cannot be renewed in the same court upon the same facts without leave of court, and that this rule applies as well to cases where there has been a change of judges as where the motion is made before the same judge. Bennett, J., dissenting'.</p> <p>5. Held, further, that the circuit judge, being satisfied from the evidence introduced before him without objection that the territorial judge who tried the case had decided the motion for a new trial-, and overruled it, though no order was signed or record made of it, very properly-refused to