This is an action of replevin for two horses, and originated in justice’s court. Plaintiff derived his title from one Susan Whitman by a bill of sale. Defendant owned a farm and was unmarried. Mrs. Whitman, who was married, lived with defendant as his housekeeper. She testified that she was employed at $2 per week, and he
The title to the horses was the issue, and upon this the testimony was conflicting. There are 66 assignments of error, nearly all of which pertain to the rulings of the court in admitting and rejecting testimony. The comments made in Boydan v. Haberstumpf, ante, 137 (88 N. W. 386), apply with equal force in this case. The proceedings from the beginning to the end of the trial constitute a “ comedy of errors,” rather than the orderly trial of a lawsuit. To the rulings of the court the attorney for the defendant seemed to pay no attention, as the following instance will illustrate: Upon the cross-examination of Mrs. Whitman the same question was repeated to her three times, notwithstanding the court each time ruled the question as incompetent, and the ruling was correct. The sole purpose of the question was to prejudice the jury. A severe reprimand, if nothing more severe, should have been administered. The same witness was asked if defendant’s farm was not sold before she went to New York State. Objection to the question as incompetent and immaterial was sustained, whereupon the defendant’s attorney said: “It is important, as I stated to the jury. She stayed with him until the farm was gone, and then abandoned him.” There was no foundation for this remark. The rule for impeaching a witness by proving contradictory statements was wholly ignored, within the rule of People v. Riede, 121 Mich. 700 (80 N. W. 796), and many other cases.
One Miller, who formerly owned the horses, testified that he sold them to Mrs. Whitman, and that, after the suit was brought, he had a conversation with defendant; that defendant asked him what he knew about the case; that witness told him that, at the time of the sale, defendant said that the cows, for which he exchanged the horses, belonged to Mrs. Whitman; and that defendant said it looked as though he would get beaten. On cross-exami
Some of the remarks of the attorney for the defendant were wholly unjustified. Mrs. Whitman had been to California with her brother, who paid her fare. She lived there about seven months, and brought back $70 or $80. The attorney said to the jury: “What old heart do you think it is aching in California ? ” There was nothing in the record to justify this remark.
It appeared in evidence that Mrs. Whitman had at one time consulted the attorney for the defendant in regard to her ownership of the horses, and had corre
“ That is just such a letter as any lawyer on the face of the earth would write, not knowing anything about the circumstances. Here is another letter, in which I told her it might be necessary to give a bond or execute a bill of sale. Now, it appears there must be some reason why I dropped that case right there. * * * I don’t remember what that woman wrote to me. I haven’t any more idea about it than anything in the world.”
He was not a witness, but endeavored in this manner to make himself one. In concluding his address he said:
“I have done my duty by the old man, and I am going to turn him over to you now. I will just say to you right now that this is an important matter to that man. He may be like an old horse turned out into the street. Your verdict may save him. Give him an opportunity of earning an honest livelihood.”
Again:
“Now, let me ask you, boys, mercy.
“Mr. McCurdy: I take an exception to the remark.
“ The Court: Don’t address the jury as ‘boys.’ ”
As long as attorneys will resort to such methods, unjustifiable either in law or ethics, courts have no alternative but to set the verdicts aside.
Judgment reversed, and new trial ordered.