123 Kan. 533 | Kan. | 1927
This is an action for conversion of 104 head of cattle, which plaintiff claimed to own, which were levied upon and sold by the defendant sheriff under an execution issued upon a judgment in favor of the defendant bank against the husband of plaintiff. The only issues for trial were whether the plaintiff was the owner of the cattle levied upon, and if so, their value. There was a verdict and judgment for plaintiff, and defendants have appealed;
Appellants contend that disqualified witnesses were permitted to testify as to the value of the cattle. An examination of the record discloses that this contention lacks merit. Frank Harding, a witness for plaintiff, testified he had been in the cattle business for about fifteen years in Hamilton and Kearny counties, that he had known the herd of cattle in question for eleven or twelve years, had had some dealings in reference to the cattle in 1921, that he was familiar with the herd of cattle, and had been through the herd a week before they were taken under execution, and that he knew their value at the time they were taken. We regard this as sufficient preliminary qualification to justify the court in permitting him to give his judgment as to the value of the cattle. A somewhat similar showing was made as to each of the other witnesses whose testimony is complained of. It was for the jury to consider the weight of the testimony of these witnesses in view of their knowledge and experience as disclosed by the record.
Appellants contend that a motion for a new trial should have been granted for newly discovered evidence. This was to the effect that some years prior to the time the cattle were taken the husband of plaintiff had registered with the county clerk, in his own name, a cattle brand, and that the cattle taken were branded in this brand. No good reason appears why this evidence could not have been obtained and produced at the trial. The brand had been of record several years, and the records were open to the public. The brand on the cattle taken could not be concealed, and was certainly a matter which the defendants could have known, and perhaps did know, before the trial. In any event, this evidence would go to the question of the ownership of the cattle. Plaintiff’s ownership of the cattle was well established. The evidence disclosed that when she and her husband were married she had filed on government land, which was later proved up, and later took an additional homestead claim, which was proved up in plaintiff’s name and owned by her;
Appellants contend that a new trial should be granted because of the misconduct of plaintiff’s counsel in his closing argument to the jury. This is the only serious question in the case. The case was tried October 6 and 7. The motion for a new trial, filed in due time, was not heard until January 16 following. On January 15 defendant filed two affidavits of the same import, one of which is as follows:
“Ben A. Wood, being first duly sworn on oath says that he resides at the city of Syracuse, and has resided at said place for a period of about forty years; that he is over twenty-one years of age, and that he was present at the trial of the above-entitled case before the jury at the court room in the city of Garden City, Kansas, and heard the address of Edgar Foster, one of the attorneys for the plaintiff, Anna A. Harding, and that said Foster in his address to the jury stated that the First National Bank of Syracuse, Kansas, one of the defendants, had caused the majority of the people in Hamilton county, Kansas, to be bankrupt, and that this was the first time that he had known that said Ben A. Wood was not connected with the First National Bank of Syracuse. That among other things said Foster said that said Ben A. Wood had made a fool of himself in his testimony before the jury, and that by reason of the action of said bank the Lord had neglected to appear around Syracuse, and in consequence the grass was growing in the streets of said city, by reason of lack of rain. Affiant further says that said Foster, among other things in said address to the jury, said that the said First National Bank was surrounded by a gang of crooks; insinuating that the witnesses who had testified in the case on behalf of the defendant had perjured themselves in their testimony. Affiant further says that the defendant’s attorney, George Getty, made objection to the court at various times during said address to the churlish remarks made as aforesaid by the said Foster, but the court neglected and refused to pass on said objections and allowed counsel to proceed along the same line as above stated, and that affiant believes that the jury was prejudiced by the statements aforesaid.”
Conduct of the kind described in the affidavit cannot be approved. The trial of a lawsuit is a judicial investigation to determine the rights of the parties and should be conducted with the decorum
But after all that is said concerning the misconduct complained of, it is difficult to see how it injuriously affected the defendants. Upon the question whether the plaintiff owned the cattle levied upon the evidence seems so complete that no other result could be reached by a new trial. As to the value of the cattle found by the jury, it is clearly supported by the evidence, and viewed by the evidencé the value found w.as not unreasonable. Another jury might find the value to be-a little more or a little less than this jury found it. There has been no miscarriage of justice here, and as much as we censure the misconduct of plaintiff’s counsel, we are forced to the conclusion that justice would not be subserved by requiring the plaintiff to go through a new trial to recover what seems to be justly due her.
The judgment of the court below is affirmed.