81 Neb. 102 | Neb. | 1908
The nature of this case is sufficiently stated in the former opinions of this court, as reported in 3 Neb. (Unof.) 47, 5 Neb. (Unof.) 184, and 72 Neb. 356. Following the reversal in 72 Neb. 356, the case was remanded to the district court, and was again tried to a jury, resulting in a-verdict and judgment for the defendant. From that judgment plaintiff prosecutes her third appeal to this court. We do not deem it necessary to consider the evidence or questions of law considered and discussed in the former opinions, and will therefore confine this opinion to the new questions raised on the present appeal. A large number of errors are assigned by plaintiff in her assignment of errors, but, under the well-established rule in this court.) we shall consider only those which are pointed out and discussed in appellant’s brief.
Plaintiff’s first complaint, and the one argued at greatest length, is that the verdict is not sustained by the evidence; that the evidence so strongly preponderates in favor of plaintiff that the verdict must have been given under the influence of passion or prejudice, in utter disregard of the evidence produced by plaintiff; and that the evidence is so overwhelmingly in favor of plaintiff that the district court should have directed a verdict in her favor. This contention was made on both of the former appeals, but in each instance this court held that the evidence offered in behalf of defendant was sufficient to recluiré the submission of the case to the jury. On this branch of the case, counsel for defendant urge that there is no merit in plaintiff’s contention that tbe court should have directed a verdict in her favor, but that, three sue
George Turner testifies that he had lived at Humboldt (the home of the Gandys and Mr. Bissell), for 19 years; that he is now filling his second term as councilman of the city of Humboldt; that he lived neighbor to Mr. Bissell (the deceased) in the years 1892, 1893, 1894; that in October or November, 1894, Mr. Bissell talked with him about securing a loan. The witness says: “One thing led on to another, and we kept on talking. I don’t know as I asked him how much he owed, but some way, I. asked him how much he wanted to borrow, and he said between $5,000 and $6,000. He said, ‘I owe M. E. Gandy about that amount.’ He said between $5,000 and $6,000.” J. G. Worral testified that he at one time lived on the Bissell farm; that in the year 1892 he had a talk with Mr. Bissell about the purchase of one of his (Bissell’s) quarter sections of land. He says: “I asked what it would take to buy it, and he said he would sell that quarter of land for
It is on the strength of the foregoing new testimony,
Plaintiff’s second contention is that the court erred in excluding from the jury the copy of the deed from the deceased to William I. Phillips conveying the farm of deceased. The defendant had introduced the testimony of the witness Ida Carsh to the effect that Mr. and Mrs. Bis-sell had informed her that they had sold a farm in Illinois for $5/100, from the proceeds of which the two quarter sections of land in Nebraska had been purchased; that the difference had been used in paying moving expenses, buying a lot in town, building a house on the lot, and making a small loan of $300 to one Stearns. All this was evidently for the purpose of shoAving that the deceased had sufficient means of his OAvn, and, hence, would not be under the necessity of borrowing from Mrs. Gandy the large sum of money represented by the note in controversy. There is the testimony, also, of Mrs. Bissell, widoAV of deceased, that her reason for making that deed (which was given for an express consideration of $1), was on account of the claim Avhieh she understood the Gandys Avere making. Dr.
Counsel for defendant rely upon Missouri P. R. Co. v Fox, 60 Neb. 531, and the other three Nebraska cases cited on page 555 of the opinion in that case, Avhich hold generally that “error in admitting improper evidence is cured by the court’s AvitlulraAval of such evidence from the jury.” Like all general rules, this rule must yield to special circumstances. No general rule has ever yet been formulated by the mind of man Avhich does not have its exceptions. The facts and circumstances in the four cases above noted are so radically different from those in the case at bar that those cases are readily distinguishable from this. In none of those cases Avas there anything out of the ordinary. No question of bias, prejudice or public sentiment against any of the parties or AAdtnesses appears; hence, there was no reason in any of those cases to fear that the minds of the jury had been poisoned by such improper evidence. The case at bar presents an entirely different situation. Here, the main assault of defendant’s counsel is upon Dr. Gandy, husband of the plaintiff. It is impossible to read their brief submitted in this case, and follow the record of their examination of Avitnesses, Avithout reaching the conclusion that every effort Avas made, on the part of counsel for defendant, to create in the minds of the jury a belief that Dr. Gandy Avas the real party plaintiff — a
Plaintiff’s fourth contention is that the court erred in overruling plaintiff’s objection to the introduction of defendant’s exhibit “E,” which consisted of a copy of the orders of the county court of Richardson county, approving the bond of the executor, fixing the time within which the creditors could file their claims, and giving the time for the publication of notice to creditors, and the original claim of plaintiff with the time when it was filed for allowance. It appears that plaintiff’s claim was filed on either the last or the next to the last day allowed for filing claims against the Bissell estate; and counsel for defend
Plaintiff’s fifth contention is that the court erred in not allowing counsel for plaintiff to argue to the jury that it was in evidence that tli§ National Christian Association is an organization to fight secret societies, and is the real beneficiary of the estate of William C. Rissell, and that the conveyance of Mr. Rissell hereinbefore referred to greAV out of that fact. Dr. Gandy’s attention Avas called lo the testimony which had been given by the Avitness IiaAvley relating to the fact of Mr. Rissell’s having deeded his property away. On his redirect examination, in an-sAver. to a question as to what Mr. IiaAvley had told him in the conversation referred to, Dr. Gandy testified that Mr Hawley told him that Mr. Rissell had deeded his property aAA'ay to a rich corporation in Chicago, the National Christian Association, for the purpose of fighting secret societies, and that if.he (Gandy) did not settle with "him he would never get a cent out of it. This testimony Avas admitted Avitliout objection, and on the strength of it Mr. Palloon, of counsel for plaintiff, in addressing the jury, sought to make the argument above indicated. Defendant’s counsel objected to this line of argument, and their objection Avas sustained. "We think the fact as to who Avas the real beneficiary of the Rissell estate, or the purpose to which Mr. RisselPs grantees might devote the property, or Avhether the statement attributed to Mr. HaAVley was true or not were all immaterial. If so, then the refusal of the court to permit the proposed argument Avas not reArersible error.
Plaintiff’s sixtlr contention is that the court erred in
Instruction No. 4, requested by plaintiff, is as follows: “The court instructs the jury that, if it appears from the evidence in this case that the note alleged in plaintiff’s petition was signed by William C. Bissell in his lifetime as alleged in said petition, then the fact which appeared on the trial of this case, that said note was in the posses; sion of the plaintiff and produced by her at this trial, of itself raises a legal presumption that said note was duly delivered to the plaintiff and lawfully in her possession, and that the conditions, if any, connected with the delivery of said note were fully complied with.” In the opinion on the last hearing of this case in this court, reported in 72 Neb. 356, the court say: “The plaintiff had possession of the note, produced it upon the trial and it was received in evidence. This made a prima facie case of due delivery of the note. The defense undertook to prove that the note was, in fact, not delivered to Gandy until after the death of Mr. Bissell. This evidence on the part of the defense was not very satisfactory, and tended likewise to prove that Mr. Bissell had made himself liable upon some kind of bond at Mr. Gandy's request, and that when the note in suit was executed, it was, by agreement between the parties, left in the hands of a third party until such time as Mr. Gandy should cause Mr. Bissell to be released from liability upon his account, and that after Mr. Bissell’s death the bond upon which Mr. Bissell was
Instruction No. 6, requested by plaintiff, is .the one in which plaintiff asks for a directed verdict This is fully covered by our discussion of plaintiff’s first contention. Counsel for plaintiff in their brief do not refer to or discuss any of the instructions given by the court on its own motion. We therefore assume, without deciding, that they are free from error.
Plaintiff’s seventh and last contention is that the court erred in sending the case to Pawnee county for trial on the change of venue granted from Richardson county. We have carefully examined the showing made by plaintiff for a change of venue from Richardson county, and also the showing made why the case should not be sent to Pawnee county. We fully récognize the rule that an application for a change of venue is addressed to the sound discretion of the court, but we must also recognize the rule that, when a proper showing is made, then the court not only has the discretion, but it is its duty, to send the case to some adjoining county for trial. We think the rule announced in Omaha 8. R. Co. v. Todd, 39 Neb. 818, cited by counsel for defendant, is the correct rule. The first paragraph of the syllabus reads: “When it shall be made to appear to a district court that a fair and impartial trial of a cause cannot be had in the county where brought, then such court has not only the discretion, but it is its duty to send the case to some adjoining county for trial.” In this case the court considered that the application for a change of venue made by plaintiff was sufficient to entitle her to the change; and properly sustained plaintiff’s motion. Having reached that conclusion, we
We have given this case very careful consideration with the AdeAV of affirming the judgment of the court below if possible, in order to end this expensive and long-continued litigation; but the more we have examined the record and studied the case, the more firmly Ave have become impressed Avith the conviction that plaintiff ought to be given a neAV trial in some county Avhere both parties may be able to go before a jury upon an equal footing.
We therefore recommend that the judgment of the district court be reversed and the cause remanded for a new trial in harmony with this opinion; and Avith instructions to change the Arenue to some county other than Richardson, PaAvnee, Johnson or Nemaha.
By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is reversed and
Reversed.
The following opinion on motion for rehearing was filed July 17, 1908. Former judgment as modified adhered to. Rehearing denied:
We are ashed to set aside our opinion in this case, ante,. p. 102, and grant a rehearing. One of the reasons assigned in the motion for rehearing is that we were wrong in holding that the district court erred in refusing to give instruction No. 4, requested by plaintiff. The instruction referred to reads as follows: “The court instructs the jury that, if it appears from the evidence in this case that the note alleged in plaintiff’s petition was signed by William 0. Bissell in his lifetime as alleged in said petition, then the fact which appeared On the trial of this case, that said note was in the possession of the plaintiff and produced by her at this trial, of itself raises a legal presumption that said note was duly delivered to the plaintiff and lawfully in her possession, and that the conditions, if any, connected with the delivery of said note were fully complied with.” Our former holding with reference to this instruction was based upon a prior opinion in this case, reported in 72 Neb. 356. On a more careful consideration of- the case we think that the criticism of our holding in reference to this instruction is sound. The instruction goes further than the rule announced in 72 Neb. 356. We think the use of the word “legal,” as qualifying the word “presumption,” might mislead the jury into believing that the presumption referred to was a conclusive presumption. While it is true that the possession of a note raises the presumption that it came lawfully into the
A number of other reasons are assigned why defendant thinks a rehearing should he granted. We have considered them all, and have carefully considered the able brief filed in support thereof, but we are not disposed to modify our former opinion further than as above indicated. We think the motion for rehearing should be overruled.
By the Court: For the reasons stated in the foregoing opinion, our former judgment, as modified by said opinion, is adhered to, and the motion for rehearing is
Overruled.