90 Mich. 190 | Mich. | 1892
This is an action of replevin for the value of eight dressed hogs. The case was tried in justice’s court, and appealed to the Kent circuit court, where the plaintiff had verdict and judgment.
The plaintiff claimed to have purchased these hogs of his son-in-law, Frank Peters, December 7, 1888. The defendant is a constable, who subsequently levied an attachment upon the property at the suit of William W. Ward against said Peters; and it was claimed on the trial that the hogs were transferred to plaintiff with intent to defraud Ward. The plaintiff received the hogs and some other property in satisfaction of an alleged indebtedness of Peters to him. On the morning of December 7, 1888, the plaintiff saw Ward at Ward’s house, and had a conversation with him about the occupation of Ward’s farm by Peters. Plaintiff testified that he talked with Ward about these hogs, and that Ward claimed to
Defendant claimed that Peters was not owing Daniels anything at the time of this transfer, and that the notes did not exist until after the talk of Daniels with Ward on the morning of the 7th. Under this claim of fraud the defendant’s counsel were entitled to great latitude upon cross-examination of the plaintiff, and should have been allowed to ask him whether, in this conversation with Ward, he told him that Peters owed him these two notes. But we do not think any prejudicial error was committed in rejecting the question. An examination of the evidence satisfies us that whether he told Ward or not that he had these notes could have made no difference in the result of the verdict.
Daniels testified in substance that Peters, at the time these notes were made, agreed to pay them in the fall
“ Then it is not correct, as your father-in-law testified, that, when he let you have the money in the spring, the talk was that, when you killed your hogs in the fall, you would pay him? Have any such talk as that?”
The objection to the question, in the mind of the circuit judge, seemed to be to the clause, “as your father-in-law-testified,” and he ruled that it might be answered if that was left out. Defendant's counsel insisted on the question as it stood, and it was ruled out. There was no error in this. The clause had no proper place in the question, and there was nothing to prevent the defendant from a full inquiry without using it. It is true that the court said that the forepart of this question was an “assumption of something not in evidence,” but we do not think this prejudicial to the defendant, as Daniels did not so testify in the exact words of the question.
In the attachment suit the plaintiff in that suit, Ward, recovered a judgment against Peters for $45.54. It was therefore established, for the purpose of this suit, that Peters was indebted to Ward in that sum when the attachment suit was commenced.
Objection is made to the following question, asked by plaintiff's counsel on cross-examination of Ward:
“When you came to bring your suit against Mr. Peters, you didn't sue for one-half of the hogs, did you?”
This question is assigned as error; as are also the remarks of counsel for plaintiff, in which he said, among other things, that he proposed to show that Ward did
The cross-examination of Ward by plaintiff's counsel was not improper. Ward testified that when he talked with Mr. and Mrs. Peters, about a week before the issue of the writ in attachment, he did not tell them how much Peters owed him, because he did not know; that he had never figured out such indebtedness at all. He was then asked on cross-examination if he did not swear in the affidavit of attachment that Peters owed him $100, as near as he could estimate the same; and if he never did any figuring on the account, or made any computations or estimate of the amount Peters was owing-him, how he came to swear to that affidavit. Then-counsel said: “I will not insist upon the question» Both statements are before the jury.” Counsel had the right to ask these questions, and when they were objected; to he- had also the right to withdraw them; and the-remark that he made was a true one, as the affidavit was. in evidence as well as the statement of Ward.
When the jury retired, Mr. Turner, of counsel for the-defendant, wanted the two notes and bill of sale, upon which plaintiff based his claim, to be taken by them to-their room. The counsel for plaintiff insisted that, if' these papers were taken, the bill of particulars should go also. After some wrangling between counsel, the-court ruled that, if any of the papers offered in evidence-were to go to the jury, all were to go that had been admitted by the co'urt, and, if any were to be excluded,, all would be excluded. Thereupon the record shows.
The court, in his instructions to the jury, fairly submitted the case upon the issues involved, and the verdict was clearly in accordance with the weight of the evidence. No prejudicial error is perceptible.
The judgment is affirmed, with costs.