34 Mont. 503 | Mont. | 1906
delivered the opinion of the court.
Action for damages for the conversion of certain personal property by the defendant as constable of Anaconda township, Deer Lodge county.
The second cause of action, in addition to these facts, alleges that it was provided by the terms of said mortgage that, if the said Nichols defaulted in the paym.ent of the principal of said note or any interest thereon according to its terms, or if, prior to its maturity, the property described in the mortgage or any part thereof should be seized under attachment or execution at the instance of any creditor of said Nichols, then, in either event, the plaintiff should be entitled to the immediate possession of all of the property; that, on July 27, 1905, the property was seized and attached at the instance of one Barich, creditor of said Nichols; that by reason of the seizure the plaintiff be
The answer admits the execution of the note and mortgage with the stipulations and conditions therein contained, and the seizure of the property by defendant at the instance of Barich, but denies every other material allegation in both causes of action. It alleges affirmatively that the note and mortgage were executed without consideration and for the purpose of hindering, delaying, and defrauding the creditors of said Nichols. There is issue by reply. The trial resulted in a verdict and judgment for the plaintiff. The defendant has appealed from the judgment and an order denying a new trial.
Among the papers constituting the record we find an affidavit to which appellant refers as the showing upon which the application for a continuance was made. But it is not identified by bill
Touching the issue of fraud and want of consideration to support the note and mortgage, it is sufficient to say that there is no substantial evidence tending to show that the mortgage and note had their inception in fraud, and that, while there are some inconsistencies in the statements of the plaintiff and Elizabeth Nichols as to the amount of money advanced to the latter to secure the payment of which the mortgage was given, the evidence is sufficient to justify a finding that the note was given for the amount which was actually advanced before it and the mortgage were executed. We may not, under this condition of the evidence, disturb the finding of the jury.
The general rule in this country is that a witness may be cross-examined as to anything testified to by him in chief or connected therewith, but not as to other matters. (Code Civ. Proc., see. 3376; 3 Jones on Evidence, see. 820; Kipp v. Silverman, 25 Mont. 296, 64 Pac. 884; Braly v. Henry, 77 Cal. 324, 19 Pac. 529; McFadden v. Mitchell, 61 Cal. 148; Youmans v. Carney, 62 Wis. 580, 23 N. W. 20; Bell v. Prewitt, 62 Ill. 361; Houghton v. Jones, 1 Wall. 702, 17 L. Ed. 503.) While the rule should be extended rather than restricted in its application, it may not be extended to include matters clearly not connected with the subject matter upon which examination in chief was had. The plaintiff having been asked only as to whether she was the owner of the note and mortgage, it was not proper on eros.s-examination to go into questions of consideration or other circumstances connected with the transaction which resulted in their execution, either on the ground that such matters were part of the res gestae, or that they were connected with matters deposed to in chief. (Youmans v. Carney, Bell v. Prewitt, Braly v. Henry, McFadden v. Mitchell, supra.) The rule applies as well- to parties as to other witnesses. (Hansen v. Miller, 145 Ill. 538, 32 N. E. 548; State v. Schnepel, 23 Mont. 523, 59 Pac. 927.)
The plaintiff was asked during her examination by defendant whether, when the mortgage and note were made, she did not know that an attachment had theretofore been levied upon the property by another creditor of Nichols. She answered that she did not. The question being repeated, she was not permitted to answer, counsel objecting that the matter sought to be brought out was immaterial. There was no error in this ruling. If the question was proper, it had already been answered. No advantage was to be obtained by a repetition.
But it is said that Nichols, the mortgagor, and the plaintiff having admitted that no money actually passed between them at the time of the execution of the mortgage, a case was presented that relieved the defendant of this burden, and that, under the facts of this case, the burden rested upon the plaintiff to show a valid consideration. The proof tended to show that, for some time prior to the execution of the mortgage, the plaintiff had been advancing money to Nichols; that during March, 1905, Nichols secured additional loans amounting to $410 from the plaintiff in order to enable her to purchase the property involved in this controversy from Barich and to make a payment of rent, and that, at the time she obtained the last sums, •she agreed to execute the note and mortgage upon the property, to secure, not only the sums then advanced, but the sums theretofore advanced, but that the execution of them had been delayed by an unexpected absence from the state, so that the mortgage was in fact executed to secure the payment of an antecedent debt. The statute, however, declares the rule and must govern. If the defendant obtained the required proof from the plaintiff or her witnesses, to this extent he was fortunate in that he was relieved from the necessity of calling witnesses, but, nevertheless, the burden rested upon him to establish this affirmative allegation from some source. So far as concerns 'this portion of the instruction, we think it a correct statement of the law applicable, and that defendant has no cause to complain.
But it is said that the latter part of the instruction excluded from the jury’s'consideration the fact that, at the time the note and mortgage were executed, the mortgagor, Nichols, was insolvent. This contention has no merit. The fact that she was
There being no error in the record, the judgment and order must be affirmed. It is so ordered.
Affirmed.