Stone v. Chicago, M. & St. P. Ry. Co.

Citations

• 3 S.D. 330
• 53 N.W. 189
• 1892 S.D. LEXIS 78

Syllabus

<p>1. To entitle a party to a continuance of a cause, on account of the absence of witnesses, the affidavit to support the application must show that the evidence of the witness will be material; that due diligence has been exercised in the endeavor to procure it; and must contain an assurance of the probable attendance of the witnesses, or procurement of their testimony, at the time proposed.</p> <p>2. In an action of conversion, even if the defendant be guilty, he has the right to show that the plaintiff has not been damnified by the act of conversion, or that his damages were merely nominal.</p> <p>S. The owner of property that has been converted by another can only recover as compensation an amount in damages commensurate with his actual loss, and any facts which, if established by proof, will go towards a mitigation of damages, are competent evidence on the trial.</p> <p>(Syllabus by the Court.</p>