Clark v. Reiniger, 66 Iowa 507

Clark v. Reiniger

66 Iowa 507 | Iowa | 1885

Eeed, J.

1. executioníeyy'forwant ?ugnuoiS“l£y" same'prop-1 peif' estop I. Plaintiff filed a reply, in which he alleged that after the executions came into defendant’s hands he levied upon the property in question, and retained possession of the same during one day, and that he then released the levy .and returned the property to plaintiff, and returned the writs to the office of the clerk, and that this was done after written notice of plaintiff’s ownership of the property had been served upon defendant, and he had demanded of tjie plaintiff in execution bonds indemnifying him against liability on account of the levy, and they had refused to give the same; and plaintiff alleged that defendant and the judgment creditors were estopped by these facts from again taking possession of the property on said judgments, and that they thereby forfeited all rights to claim the property on the judgments. On defendant’s motion this reply was stricken from the files, on the ground that the matters pleaded therein did not constitute an estoppel, nor did they avoid defendant’s claim, but w'ere irrelevant and redundant. This ruling is clearly right. On the failure of the plaintiffs in execution to give the sheriff indemnifying bonds, it was his right to decline to proceed further under the levy, and lie might properly restore the property to the person from whose possession it was taken. *510Code, § § 3056, 3057. But the release of the levy and the return of the writs had no effect upon the judgments on whicli they were issued; nor were the rights or liabilities of the parties thereto affected in any manner by what was done. The plaintiff in the judgments had the right, on the return of the writs, to have other executions issued, (Code, § 3025,) and upon these writs any property belonging to the defendant in the judgments might be seized and sold in satisfaction of the judgments. If, then, the property in question belonged to E. M. Clark, or if it had been transferred by him to plaintiff in fraud of the rights of his creditors, the right of the plaintiffs in the judgments to have it seized on the second execution, and appropriated in satisfaction of their judgments, was not at all affected by the proceedings which were had under the former writs.

2. VRATOUí?iP’.eR7ey" tnde in cross-examination. II. Plaintiff was examined as a witness in his own behalf, and testified that he purchased the property of E. M. Clark, (who is plaintiff’s father,) and that he derived the ' 1 V means with which he made the purchase from the sa^e °*' a P’acf of land which he and his father jia(j owne(j jointly. On cross-examination he was asked whether, at the time he purchased the property, he did not have knowledge of certain judgments against his father, and of suits which had been instituted by the judgment creditors for the purpose of subjecting certain property to said judgments, and whether he supposed, when he made the purchase, that his father was solvent, and whether he did not know that his father’s personal property was covered .by chattel mortgages. Plaintiff objected to all of these questions, on the ground that they were not proper on cross-examination, were immaterial and incomjietent.

The objection was overruled, and jdaintiff was required to answer the questions. This ruling is assigned as error. Under the issue it was material to inquire as to the financial condition of E. M. Clark at the time of the sale; and whether plaintiff had knowledge of that condition when he made the *511purchase was also a material inquiry. The materiality of the facts sought to be elicited by the questions objected to cannot be doubted, and we also think they were properly allowed on cross-examination. On his examination in chief, it is true, the witness had been examined only as to the transactions of the purchase of the property, and that in which he claimed to have obtained the means with which he made the purchase. But under an issue of this character a good deal of latitude is allowed in the cross-examination of the parties to the transaction in question, and they may be inquired of concerning matters which relate to the transaction, and which tend to show the motives of the parties in entering into it, even though no inquiry was made in the examination in chief with reference to them.

3._. eviott”éraud 0 ances°iSreievant: cross-examination. III. E. M. Clark was also examined as a witness for plaintiff. In his examination in chief he testified simply that he had no interest in the property in question, and that it belonged to plaintiff. On cross-examination he detailed the transaction of the saie of the property hy him to plaintiff substantially as plaintiff had done. Tie was then asked a number of questions with reference to a transaction between him and one Grove, in which it was claimed hy defendant that Clark purchased certain real estate from Grove, and had the title thereto conveyed to another son, who held it for a number of years, when it was sold, and the proceeds applied to Clark’s benefit. Plaintiff objected to these questions on the ground that they were irrelevant and immaterial; but the objection was overruled, and the witness was required to answer the questions, and his answers had some tendency to establish defendant’s claim with reference to the transaction. lie was also asked with reference to his interest in a certain farm which he occupied, but the title to which was held by a brother-in-law of his. Plaintiff objected to all questions asked the witness with reference to this subject on the same ground; also on the further ground that they were not proper on cross-*512examination; but this objection was also overruled, and the witness testified that his brother-in-law had held the title to said farm for about eighteen years, but that he (the witness) had occupied and cultivated it during the time, and that he had an interest in it. Tie was not ashed any questions, however, as to the extent of his interest, nor was he asked to explain the object for which the title was placed in his brother-in-law, and retained by him. The objection urged against the questions with reference to the transaction with Grove is that the facts sought to be elicited are immaterial and irrelevant. The objection makes no question but that defendant, if he was entitled to prove the facts under the issue, was entitled to prove them by the cross-examination of the witness.

Defendant’s claim is that Clark procured the title to the real estate purchased from Grove to be conveyed to his son for the purpose of covering the property from his creditors. The question, then, which was raised by the objection is whether the fact that Clark, in the transaction with Grove, caused the property which he purchased from him to be conveyed to his son with intent thereby to cover it from his creditors, is admissible as evidence that the transfer of the property in question was made with a like fraudulent intent. It will be observed that the transactions are entirely distinct. The one with Grove occurred years before the occurrence of the one with plaintiff. They relate to different properties and were between different parties. The facts of the transaction between the witness and Grove were not relevant to the issues in the case. Nor were they relevant to the facts which were put in issue by the pleading. We think, then, that, under the elementary rule “ that the evidence must correspond with the allegations and be confined to the point in issue,” the evidence in question should have been excluded. 1 Greenl. Ev., § 50; Stevens, Dig. Ev., a. 1. The question with reference to the interest of the witness in said farm should also have been excluded under the same rule. And, in addition to that, defendant was not entitled to ask them on *513cross-examination. They had no relation either to the transaction in question or to any matter about which the witnesses had been examined in chief.

4. EVIDENCE : practice: contradicting irrelevantt0 matter.

B. ERAUDUlent conveyauce: devemjor°-nmaafCectecTbyas fame. IV. The witness E. M. Clark was also asked whether he had not, at a time and place which were named, made certain statements to one Smith with reference to his „ _ ownership ot the property purchased from drove, 1 1 r - r ’ which were inconsistent with his testimony given on £jie trial. He answered this question in the negative, and defendant thereupon called Smith, who, against plaintiff’s objections, was permitted to detail the statements of Clark on the subject at the time and place referred to in the question. This evidence was introduced for the purpose of impeaching the credit of the witness. But it was not competent for that purpose. The matter to which the alleged statement referred, as we have seen, was not relevant to the issue. And it is only as to matters which are relevant that a witness can be contradicted. 1 Greenl. Ev., § 462; Nelson v. Chicago, R. I. & P. R’y Co., 38 Iowa, 564. He was also asked whether he had not stated to another person, at a time and place named, that if the plaintiffs in execution collected their judgments against him they would be smarter than he was, which he answered in the negative; and the ° ’ , , person named m the question was called, and, against plaintiff’s objection, was permitted to testify that at the time and place named in the question Clark made that statement. Both plaintiff and his father testified that the sale of the property to plaintiff took place more than a year before the time of this alleged statement. If it could be said that the evidence showed, without any conflict, that the property was transferred to plaintiff at the time sworn to by him and his father, the evidence of the statement should have been excluded. Eor, if the witness made the statement attributed to him, it indicated simply the motive and feelings which actuated him at the time, and was not an index of his purpose in making *514the transfer of the property a year or more before that. His motive and purpose at that time were immaterial, and he could not be discredited by showing his declarations with reference to them. But it cannot be said, we think, that there was no conflict in the evidence as to the fact of a sale of the property to plaintiff at that time. There was some evidence that plaintiff’s father continued, after the time of the alleged sale, and up to near the time of the levy, to exercise some control over the property. There is also some evidence of acts by plaintiff with reference to the property after that time, which are not entirely consistent with the claim that he was then the absolute owner of it.

Defendant had the right to have the question, whether any transfer of the property had been made before the time of the alleged statement, passed upon by the jury. If the transfer was not made until after that time, the motives and intentions of the witness at the time were material. We think, therefore, that the evidence of this statement was properly admitted. The questions necessary for laying the foundation for the admission of the evidence of this statement were not asked during the cross-examination of the witness; but after jdaintiff had rested, and defendant had introduced a portion ■ of his testimony, he asked leave to recall the witness for the ^purpose of then asking such questions, and, against plaintiff’s objection, leave to do this was granted by the court. This action of the court affords no ground of exception. The matter was within the discretion of the court, and no abuse .of discretion is shown.

•same as no 3 .ame. V. Defendant was permitted, against plaintiff’s objection, ito introduce the record of a number of chattel mortgages giyen by E. M. Clark to various persons. There wag n0 evidence tending in any manner to show ■that these mortgages were not given to secure bona fide ■ debts of the mortgagor. Many of them were executed years .before the transactions in question, and none of them affect the property in controversy. We think they ought not to *515have been admitted in evidence. They did not tend either to prove or disprove any fact material to the case or relevant to the issue.

e instruccepUonseto": taken :°pracpeai?n ap” YI. Error is assigned on certain of the instructions given by the court; but the record shows that these instructions were not excepted to either at the time they were given or within three days' after the verdict was returned. Plaintiff is, therefore, not entitled to have the questions considered which he attempted to raise by these assignments. Stevens v. Taylor, 58 Iowa, 664; Kelleher v. City of Keokuk, 60 Id., 473; Bailey v. Anderson, 61 Id., 749; As the judgment must be reversed on the grounds pointed out, we do not consider the questions argued by counsel relating to the sufficiency of the evidence to sustain the verdict, and the form of the judgment.

Beversed.