Smith v. Tosini

Citations

• 1 S.D. 632
• 48 N.W. 299
• 1891 S.D. LEXIS 67

Syllabus

<p>1. Where an equitable action was commenced in a territorial district court, and the evidence taken before such court, but before a decision was made the district court became extinct by reason of the admission of the State of South bakota, it was not error for the judge of the circuit court which succeeded said district court, he having been the judge of such district court at the time of its extinction, and the judge who partially tried the case, to decide the same upon the evidence taken before him as such district judge.</p> <p>2. In such case it was .competent and proper for the circuit court, under Section 1, art. 26, of the state constitution, to take up the case at the point whei-o the district court left it, and proceed to a Anal determination as nearly as possible “as if no change had taken place in this g'ovomment.”</p> <p>3. The old chancery rule that where an answer is responsive to the bill and denies all allegations of fraud such denials are evidence in defendant’s favor, and must be overcome by the testimony of two witnesses, or of one witness corroborated by circumstances equivalent in weight to another, is not in harmony with the theory or practice of our Code, and became obsolete on i1s adoption.</p> <p>4. Where the contest is between the husband’s creditors and the wile, over property which the wife claims, but which there are probable g'rounds for believing belongs to the husband, it is incumbent on the wife to show by satisfactory evidence that she purchased and paid for the property from her separate estate.</p> <p>5. In such case, the unexplained omission of either husband or wife to testify as to the bona fldes of the transaction, and their respective relations to it, creates a presumption unfavorable to them.</p> <p>(Syllabus by the Court.</p>