DocketNumber: File No. 7063
Citation Numbers: 58 S.D. 477, 237 N.W. 570
Judges: Campbell, Polley, Roberts, Rudolph, Warren
Filed Date: 6/26/1931
Status: Precedential
Modified Date: 7/20/2022
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.
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