1 Indian Terr. 146 | Ct. App. Ind. Terr. | 1897
(after stating the facts.) 1. It is urged íat the trial court erred in setting aside the judgment rend-ced in the case in October, 1891, and in reinstating the tse upon the docket for trial. The proceeding to set aside las begun within three years after the rendition of the pgment, was authorized by section 5155, Mansf. Dig., lich was in force in the jurisdiction, and was conducted in bnformity with law. To the action of the trial court in Jtting aside the judgment no exception was reserved. No ation was made before the adjournment of court at that cm, questioning the correctness of its action in any par-bular. The case was, after reinstatement, continued to (.other term- by agreement of parties. At the trial term, Ipellee, by leave, filed an amended complaint, upon which joined issue. In the motion for new trial filed by him to aside the judgment then rendered the action of the court
2. Exception was taken to the remarks of counsel for appellee in his opening statement to the jury. The statement is lengthy, and contains the allegation of several distinct matters. The exception does not point out the specific matter complained of, and might be disposed of upon the ground that it is too general to require consideration. Gowen vs Bush (May term, 1896) 76 Fed. 349. In| addition, the remarks were with reference to a plea of rei adjudicata, which stood as one of the defenses to the action,¡ though it appears, from the absence of testimony upon thi issue, that it was abandoned. The opening statement must of necessity, be left largely to the professional responsibil ity of counsel and to the discretion of the trial court. It i; a statement of the issues, and of what counsel expect td prove in support of them, and, if a matter stated be perti nent to an issue raised by the pleadings, the court canno exclude it, nor can its action be questioned, because counsel subsequently fail to support the statement by offer of proof The objection urged is not well taken. 1 Thomp. Trials| arts, 261-266.
3. Two issues of fact, counsel concede, are raised bj the proof: First. Was either of the mortgagors, at thl time of the execution of the mortgage, a resident of thl Indian Territory ? Second. Were the cattle in appellant'] possession prior to their seizure under attachment? Th| court submitted these issues to the jury. In the manner submitting them the court probably furnished valid ground of complaint by appellant, as it may also have done by rl
4. It is insisted that the proof shows that Lane was a esident of the Indian Territory at the time of the execution f the mortgage, and that, therefore, the judgment is unsup-iorted by the evidence. To sustain this position, we are ited to the case of Krone vs Cooper, 43 Ark. 547. While pproving the reasoning and the conclusions announced in íat decision', we are of opinion that the evidence in this case tises an issue upon the question of Lane’s residence in the irritory at the time the mortgage was given, and that the erdict of the jury cannot be held to be without support in le testimony. It is further contended that the undisputed roof shows that appellant was in possession of the cattle in mtroversy before the attachment was levied. To deter-ine this contention, we have thoroughly considered the-■cord, and, we are compelled to say, without aid therefrom, e testimony was adduced with so little regard to clearness logical sequence, questions and answers are so confusing id inconsistent as to different bunches of cattle in different istures at different times, that a reasonable conclusion up- . the question under consideration cannot be had. The