76 Neb. 219 | Neb. | 1906
From July, 1894, to July, 1897, 0. Lawrence Stull was treasurer of defendant school district. At the close of his term he attempted to retain certain funds of the district to pay himself for labor performed for the district and interest paid on its registered warrants. Stull and his surety were sued for funds thus retained. A counterclaim and set-off for the amount of Stull’s 'claim was interposed. In the district court Stull confessed
From the foregoing statement it will be seen that the consideration relied on by the plaintiff to support the alleged settlement between Stull and the school district was the abandonment of his right to prosecute error to this court from the judgment dismissing his action against the district, and for costs, rendered in the district court for Oass county on the 1st day of June, 1899. The court instructed the jury that there were five issues of fact involved in the case, and which they were called upon to determine, and that the burden of proof was upon the plaintiff to establish each of such issues by a preponderance of the evidence. One of such issues was thus stated by the court in its instructions to the jury:
“Was 0. Lawrence Stull, on or about the 26th day of June, 1899, intending and preparing to have reviewed in the supreme court of Nebraska, in the ordinary manner, a judgment rendered against him in the district court for Oass county, Nebraska, June 1, 1899, in which case the said Stull was plaintiff and school district 28 in Oass
But the defendant contends that the plaintiff must fail in any event, for the reason that he is concluded by the judgments rendered in the two proceedings in mandamus instituted by Stull, his assignor, because, as he asserts, the issues in those cases were precisely the same as those raised in this action. The argument upon this branch of the case is somewhat confusing because of the failure to distinguish between a judgment urged as a technical bar to another action and one that is urged merely as conclusive upon the parties as to one or more of the issues involved. This distinction is made clear in Cromwell v. Sac County, 94 U. S. 351, quoted at some length in Hanson v. Hanson, 64 Neb. 506, and is recognized by all text writers. Without stopping to enumerate all the essentials
In the present case, the plaintiff’s claim is based on a contract. His two applications for a writ of mandamus were based on the alleged refusal of the respondents to' perform a plain ministerial duty. It is quite clear therefore that the subject matter involved in those proceedings was different from that involved in the case at bar, and that the judgments rendered therein are not available in support of a technical plea in bar of this suit. Those judgments, then, if available to the defendant in this case for any purpose, are available only to the extent that some material issue was litigated and determined in one or both of those actions, and as to any such issue the judgment or judgments by which it was determined are conclusive upon the parties. But, from an examination of the record in the two mandamus cases, it is impossible to determine upon what grounds the applications were denied. From the pleadings it is clear that some of the issues raised are identical with some of those raised in the present action. But in addition to such issues there was involved in each application the further iss ue, whether the respondents were in default of an official duty which the court would enforce by mandamus. From “the nature of the pleadings the applications might have been denied for reasons in nowise affecting the merits of the present cause; for example, on the grounds alleged in the petition
Complaint is made because the court, over defendant’s objection, admitted evidence to the effect that Stull had a reputation in the neighborhood where he resided for being of a quarrelsome disposition. One of the theories of the defense was that Stull, plaintiff’s assignor, and others instigated by him, in order to secure the adoption of the resolution for the compromise of Stull’s claim against the school district, so conducted themselves at the school meeting as to raise a reasonable apprehension that opposition to the resolution would result in a breach of the peace on their part, and, in consequence, that a large number of the electors, some of whom were women, left the meeting before a vote was taken on the resolution, which would have been defeated but for such intimidating tactics. There may be some doubt whether the answer presents
“We can certainly see no reason why it is not proper, in support of such a defense, to make proof of the plaintiff’s character in a civil action for assault and battery as much as in a prosecution for homicide; but in such cases the proof must be of the plaintiff’s general reputation.”
Complaint is also made because the court received evidence of statements made by some of the electors upon leaving the meeting as to their reason for leaving, to the effect that they were leaving because they expected trouble over the resolution. It is argued that such statements are self-serving declarations and hearsay. But the statements were made at the meeting by electors who were a part of the meeting. They appear to have been made spontaneously, and, in view of the- theory of the defense above stated, were properly received, we think, as a part of the res gestee. In Mathews v. Great N. R. Co., 81 Minn. 363, where declarations of a party as to his reason for going to a certain place were received in evidence, the court, in passing upon the competency of such evidence, said:
“The evidence was competent, for it falls within the rule that when it is material to show the purpose or reason*228 for the departure of a person, or of an act done by him, his declarations of his purpose, or reason for so doing, made at or about the time he acts, if- made in a natural way, and without any circumstances of suspicion, are admissible as original evidence.” Citing 1 Greenleaf, Evidence (16th ed.), secs. 162d, 162e; State v. Hayward, 62 Minn. 474; O’Connor v. Chicago, M. & St. P. R. Co., 27 Minn. 166; Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 12 Sup. Ct. Rep. 909; Commonwealth v. Trefethen, 157 Mass. 180.
Other questions are discussed, but the probablity that they will arise upon another trial is too remote to justify discussing them at this time.
For the error in the charge to the jury hereinbefore pointed out, it is recommended that the judgment of the district court be reversed and the cause remanded for a new trial.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for a new trial.
REVERSED.