Giddings v. Nefsy ( 1931 )

WARREN, J.

This case is now before us for consideration for the fourth time, and is the companion case of the .Stock Growers’ Bank, a corporation and Fred R. Smith, as Superintendent of Banks, v. William H. Nefsy and John Nefsy, 58 S. D. 479, 237 N. W. 571. The first opinion will be found in 46 S.D. 505, 194 N.W. 648; the second opinion in 51 S. D. 73, 212 N. W. 507. The third opinion and the opinion on rehearing will be found in 52 S. D. 436, 218 N. W. 18. Upon the rehearing this court held that “the former opinion is adhered to.” Since said! opinion was written, this action was again tried, and before a different trial judge, and is now in this court on appeal for the fourth time. The trial court made its findings, conclusions, and judgment in favor of the plaintiff, which was contrary to the former holdings of this court.

The respondents, in their briefs and argument, strenuously contend that the evidence has been materially strengthened, and ■that the pleading’s have been changed, thereby justifying the trial court in reaching a different conclusion than that reached by this ■court upon the various appeals and rehearing.

It is true that more witnesses were called, and that some of the witnesses who had testified on the former trial failed to use the same identical language that had been used upon the first trial. The testimony of the various witnesses that testified 'both at the first and at the second trial is before us; in fact, much of the evidence of the first trial was preserved 'in the opinion of this court written by the late Judge Gates. In reviewing the testimony given by the additional or new witnesses, we are unable to see that the plaintiff’s position has been materially strengthened; in fact, some of the testimony seems to have weakened the plaintiff’s contention.

An examination of the appellant’s statement and record and of respondents’ additional statement fully convinces us that no change whatever favoring- the plaintiff has taken place, since this matter was before the court when the entire record was considered and the opinion written. In fact, we believe that the record made at the last trial and as now submitted to this court is more strongly in favor of the defendants than when formerly submitted.

The pleadings are substantially the same, excepting the amendments which were made to fit newly discovered matter, and matters existing, but not within the knowledge of the pleader at the time of drafting the pleadings. We have carefully considered the assignments of error and are again convinced that the order and judgment appealed from must be reversed, and that the former opinion must be adhered to. The language used in the former opinion written by the late Judge Gates ought to be a sufficient guide to the trial court to make further disposition of the matters involved in this case. This action is therefore remanded for further proceedings consistent with the opinion heretofore rendered and now adhered to. The judgment and1 order appealed from are hereby reversed.

POLLEY, P. J., and CAMPBELL, ROBERTS, and RUDOLPH, JJ., concur.