Bixby v. Carskaddon, 63 Iowa 164

Bixby v. Carskaddon

63 Iowa 164 | Iowa | 1884

Seevers, J.

1. Venue: agreement to change of: further change after new parties brought in. I. It is contended by counsel for the appellant that the court erred in overruling a motion for a change the place of trial, on the alleged ground that the defendants and their attorneys have such an undue influence over the inhabitants of the county , 1 , ,. . . .. .. . that plaintiii cannot obtain a fair trial therein. This action was originally brought in 1879, in the superior court of Cedar Rapids; and, before the attaching creditors were substituted as defendants, it was stipulated by the then parties as follows: “ It is agreed by the parties that the *166venue in this case be changed to the Linn county circuit court, and that the same stand for trial at the January term, 1880. It is further agreed that the attaching creditors be made parties defendant with the sheriff, and that the present answer of the substituted defendants be an answer for all the defendants. It is further agreed that the cause shall not be transferred by either to the federal court, but shall be tried in the Linn circuit court.” This stipulation was filed on the second day December, 1879. Afterward, on the second day of February, 1880, another stipulation was signed, in which the names of the creditors are stated, and the defendants were to have sixty days to answer, and, as we understand, the substitution was then made, or the attaching creditors were then made parties.

The affidavits and motion for a change of the place of trial were filed at the January term, 1882, and the defendants filed written objections thereto, as follows: “First, The plaintiff has stipulated to try the action in this court. Second, The affidavits are insufficient in this, that they do not state that either defendants or their attorneys have undue influence, but that both together have such influence.”

As to the objection first above stated: The stipulation was that the action should be tried in the Linn circuit court; and it will be conceded that, as between the then parties, the stipulation should have full force and effect. But clearly, we think, the persons who were afterwards substituted as defendants are not bound by the stipulation as to the place of trial. It is true, they have not repudiated it, but that they could have done so there is no doubt. If the stipulation is not binding on them, it should not be so held as to the plaintiff. As between the parties to the action when the stipulation was made, it may be that the action should be tried .in Linn county. At least, they were willing it should be so tried; but it does not follow that either of the parties would be willing or bound to try it in such county, when other per*167sons have been made parties, who might influence public sentiment against them.

2. -: motion for change of: compliance with language of statute. As to the second objection: The statute provides that if the “adverse party, or his attorney, has such undue'influence over' the inhabitants of the county that (the party applying for the change) cannot obtain a fair trial,” then "there may be a change of the place of' trial. The affidavit for the change states that “the defendants and their attorneys” have such undue influence.

Counsel for the appellees contend that, under the statute, the party or his attorney must have such influence, and that the affidavit states that both combined have, and, therefore, it is insufficient. We do not think this is the proper construction of the affidavit. It states that both the defendants and their attorneys have such undue influence over the inhabitants of the county that the plaintiff cannot obtain a fair trial.

The affidavit is broader than the statute, for it evidently means that the defendants have such undue influence, and so have their attorneys. That is to say, that each have, and not that both combined have. The affidavit' cannot fairly be construed as stating that, by combining the influence of both, the requisite undue influence can be said to exist.

3. -: CHANGE OF BY AGREEMENT: RIGHT TO FURTHER CHANGE FOR cause. The further objection is made, that the affidavit fails to state that the ground upon -which the change was asked was not in existence when the place of trial was changed by stipulation from the superior court of Cedar Rapids.’ This objection was not made in writing in court below, but it is said that written objections were not required, and that the objection now under consideration may have been made orally in the circuit court. Possibly this is so. The statute provides that, “after one change, no party is entitled to another for any cause in existence when the first change was obtained.” Code, § 2591. We do not understand that either party had previously applied for and obtained a change in the place of trial, but that *168the parties mutually agreed to do so. This they may do, whether any statutory cause exists or not, and we do not think the statute quoted applies to such a case.

4. Practice: evidence: reading part only of deposition: error without prejudice. II. The plaintiff took the deposition of one Shedd, and the defendants cross-examined the witness. The plaintiff did not introduce the deposition, and the defendants asked leave to introduce the cross-examination. To this the plaintiff objected, unless the defendants introduced the whole deposition, including the “direct examination upon which the cross-examination was based.” The objection was overruled, and the cross-examination was introduced by the defendants. After they had rested, the plaintiff asked and obtained leave to introduce the examination in chief. It seems to us, if it be conceded that the court erred, that it was error without prejudice. The whole deposition was introduced, which was just what the plaintiff asked should be done. By the introduction of the cross-examination, the defendants made the witness their own, and liable to observation as such before the jury. We must not be understood as holding that it is either proper or improper for a party to introduce a portion only of a deposition in evidence under the circumstances just stated. We do not regard such question as being before us. That the party by whom a deposition is taken cannot select certain portions of it, and introduce such portions only, was held in Kilbourne v. Jennings, 40 Iowa, 473.

5. Evidence by Deposition: adoption by witness of answers made in prior examination: competency of. *1696. -:--: objection too late. *168III. It is further objected that the matter “puiqiorting to be a cross-examination” of the witness Shedd was not “proper matter for cross-examination; that the same consisted solely of the answers of said Shedd formerly taken as a garnishee, and was, therefore, not competent as original evidence on the part of the dex ° .... iendants.” Ilns objection was also overruled, J As we understand, Shedd was garnished by one or all of the attaching creditors, as the supposed debtor of Billings, and his answers taken as such garnishee. The credit*169ors were not content' with his answers to the statutory questions, but Sbedd was subjected to a lengthy examination. The plaintiff gave notice to take Sbedd’s deposition on á commission and written interogatories. ■ The defendants filed cross-interrogatories, and in substance asked Sbedd if be bad been examined as garnishee, and whether bis answers to tbe questions then asked, which were placed in bis bands, were correct. Some few corrections were made, and in other respects be stated that bis answers to questions propounded to him were correct, and the same were made a part of tbe deposition. This is the cross-examination objected to, and which was introduced in evidence. The mere fact that Sbedd adopted tbe answers made in tbe garnishee proceeding would not render the evidence incompetent. Tbe evidence may have been irregularly obtained, but this is quite a different thing from incompetency. No exception was taken to, nor was a motion made to suppress, tbe cross-examina- . . . . tion, because it was improper, or not authorized by the examination in chief. the objection now under consideration was not made until the defendants offered to introduce the evidence. the objection, therefore, that it was not proper as a cross-examination, comes too late; for it is provided by statute that no exception to depositions, other than for incompetency or irrelevancy, shall be regarded, unless made by motion filed by the morning qf the second day of the first term after the depositions have been filed witb the clerk.” Code, § 3751.

It is usual and proper, when a deposition is taken, to call the attention of the witness to documents and writings, and inquire as to their correctness, o'r otherwise identify them, and attach the same as exhibits to the deposition. This, in substance, is what was done, and the answers of the witness as garnishee became bis deposition or evidence as a witness in this case. It cannot be said that the plaintiff did not have notice of the taking of the deposition, and it is immaterial, under the circumstances, that the answers of Sbedd' as gar*170nishee were taken in the absence of the plaintiff, because, as .we have said, the witness adopted such answers, and made the same a part of his deposition in this case.

' IY. It is further objected that the cross-examination of Shedd, or at least certain portions thereof, are irrelevant and incompetent. We have read the whole deposition, and reach the conclusion, satisfactory to our minds, that the cross-examination is both relevant and competent. We deem it unnecessary to state our reasons at length.

Y. Several paragraphs of the charge are objected to. The third is said to be erroneous. We are not sure that we fully understand the legal proposition intended to be stated. The paragraph under consideration, to our minds, is not as clear as it should be, but we are not jn’epared to say that it is erroneous.

7. Fraudulent Transfer of Goods: evidence. In the fourth paragraph, as we understand it, the jury were directed to consider the acts and declarations of persons other than Billings the plaintiff, for the purpose determining the fraudulent intent. What the court meant by “other persons” we do not know, and deem it sufficient to say that, ordinarily, the acts of persons, other than those engaged in the alleged fraudulent transaction, could not and should not prejudicially affect the plaintiff. The court further directed the j ury to consider the acts and language of Billings subsequent to the sale, of which the plaintiff had knowledge, for the purpose of determining whether the sale was fraudulent or not. We think this instruction is erroneous. Keystone Manufacturing Co. v. Johnson, 50 Iowa, 142. Suppose Billings had said in the presence of the plaintiff, after the sale, that it was fraudulent, this would not have any effect on the rights of the plaintiff, except that he might be called upon to deny what Billings said, or, if he did not do so, an inference could be drawn against him because of his silence.

Several other paragraphs of the charge are objected to, and in relation thereto we only deem it neceessary to say that, with a little more care on the part of the court in drafting the in *171structious on the retrial, the criticisms of counsel can he obviated, and the legal propositions intended to he announced stated with the requisite clearness aud precision.

Thirty-two instructions were asked by plaintiff, all of which 'were refused. We deem it sufficient to say that, in our opinion, the sixth, seventh, eighth and twenty-second, or others of similar import, should have been given. We do not mean to be understood as saying that the exact language of these instructions should he adopted, but, substantially, they are deemed correct.

Reversed.