30 Kan. 15 | Kan. | 1883
The opinion of the court was delivered by
On September 13,1879, a judgment was rendered by the district court of Anderson county, Kansas, in favor of Jesse Ewing, plaintiff, and against S. L. Fullenwider, defendant, for $1,000, damages adjudged to have accrued by
The petition of Fullenwider asking that the original judgment should be vacated and a new trial granted, was based upon the alleged grounds that he had never been guilty of any criminal conversation with Ewing’s wife, and that the original judgment was obtained against him by the fraud and conspiracy of Ewing and his wife and daughter, Laura J. Ewing, and by the perjury of Ewing and his daughter, and the subornation of perjury by Ewing. The evidence on the original trial, in Anderson county, and on the second trial, in Johnson county, was substantially the same, except that there was some additional evidence introduced on the second trial. At both trials Laura J. Ewing testified that she saw the defendant, Fullenwider, have sexual intercourse with her mother, Rebecca Ewing; and at both trials Jesse Ewing testified to several facts which tended to corroborate the testimony of his daughter; while at both trials Fullenwider testified that no improper intimacy ever existed, and no improper acts ever occurred between himself and Rebecca Ewing. There was some evidence at both trials tending to impeach the general character of Jesse Ewing for truth and
“I here state that there never was any improper intimacy between Mr. S. L. Fullenwider and myself; nor did we ever have any sexual intercourse or improper conversation between us.”
This is all she says upon this subject.
I. It is evident from the record in this case that some person has actually committed perjury in the case, and this applies to both trials; but who committed the peijury, this court cannot tell. The members of this court have never seen the witnesses, nor heard them testify, and know nothing about them except what they have seen on paper. The question as to who told the truth and who testified falsely, was presented to a jury of the county in which all the witnesses and parties at the time resided; and the court and jury, after seeing the witnesses and the parties and hearing them testify, were much more competent to determine as to who told the truth and who testified falsely, than this court. On the second trial, the court which then tried the case also saw the parties and the principal witnesses, to wit, Jesse Ewing, Laura J. Ewing, and S. L. Fullenwider, and heard them testify; and that court was also, for these reasons, much more competent to determine as to who told the truth and who did not tell the truth, than this court. If this court should reverse the finding and judgment rendered by the trial court on the second trial on the evidence then introduced, it would virtually upon mere paper evidence say that one jury and two able and experienced courts, which saw the principal witnesses and heard them testify, were mistaken with regard to the facts; and this it would have to say merely from the evidence as it appears on paper, and without ever having seen any of the witnesses or the parties to the case. We cannot retry a case upon conflicting paper evidence, and reverse the decision of the district court upon the facts, where the district court has heard the case and found the facts almost exclusively upon parol evidence. For this reason, among others, we cannot say that the trial court erred with regard to the facts of the case.
There are some technical questions, however, which counsel for plaintiff in error, Fullenwider, present to this court, which we shall now proceed to consider.
II. On the second trial, Fullenwider offered to introduce
We.think the decision of the court was correct. The deposition of a witness can never be used as evidence, except where the oral testimony of the witness cannot be procured, or where the oral testimony of the witness is not required. (Civil Code, §§ 246, 360.) And an affidavit can never be used as evidence where a deposition cannot be so used; and in many cases an affidavit cannot be used where a deposition may be used. It will be remembered that this proceeding is not a mere motion to vacate a judgment, or for a new trial; but it is a proceeding for such purpose, founded upon a petition filed more than a year, and after several terms of the court had intervened, after the original judgment was rendered, and is in the nature of an action. In one sense it may be considered as a mere incident to the original action, or as a proceeding belonging to and growing out of the original action; but in another sense it must be considered as an action itself. In the case as it was originally commenced, Jesse Ewing was the plaintiff and S. L. Fullenwider was the defendant; but in the proceeding, as it was prosecuted upon the petition to vacate the original judgment and for a new trial, S. L. Fullenwider was the plaintiff and Jesse Ewing was the defendant; and such proceeding upon such petition partakes, to a very great extent, of the nature of a suit in equity to vacate or set aside a judgment for fraud or otherwise; and if the proceeding itself does not arise to the grade or dignity of an action, it partakes, to a very great extent, of the nature of an action. In § 4 of the civil code, it is stated that “an action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right,
III. The plaintiff in error, Fullenwider, also claims that the exclusion of a certain letter, purporting to have been written by Thomas J. Ewing, was error. But the ruling of the trial court upon this matter was so manifestly and unquestionably correct, we think it is unnecessary to say anything further with reference thereto.
IV. While Ewing was testifying as a witness, his counsel asked him the following question: “ Had you ever spoken to anyone about bringing suit against Fullenwider for criminal conversation with your wife until after you had separated from your wife and it was made known generally in the neighborhood that Fullenwider had debauched your wife?” This question was objected to by Fullenwider for incompetency, and because it assumed as a fact what had not been proved, and was leading. The court overruled the objection, and permitted the question to be answered; and the witness answered, “ I had not.”
V. The plaintiff in error also complains that the court permitted evidence to be introduced with reference to what Jesse Ewing said and did at a particular time and place, prior to the commencement of the original action. This was not error. Fullenwider was present at the time, and the evidence was probably introduced for a twofold purpose: First, to show that Ewing was sincere in prosecuting Fullenwider for what he (Ewing) supposed to be a real wrong; and, second, to show that Fullenwider did not at the time act as though he considered himself as really an innocent man, and Ewing as the only man who was tainted with moral obliquity;
"VI. The plaintiff in error also complains of the trial court in permitting Ewing’s counsel to show that Eullenwider’s counsel knew of the whereabouts of Mrs. Ewing at the time of the first trial, and knew that they could procure her testimony if they so desired. We do not think that this was error. Eullenwider, as before stated, introduced the deposition of Mrs. Ewing on the second trial, and it was not erroneous for the court then to permit Ewing to show that Eullenwider could have procured her testimony on the first trial if he had so desired. Probably, however, the evidence complained of did not affect the decision of the court in the slightest degree. It was a matter of but very little consequence.
The judgment of the court below will be affirmed.