Harrison v. Charlton

42 Iowa 573 | Iowa | 1876

Day, J.

1. EVIDENCE: testimony of deceased witness. I. Upon the former trial A. R. Ellis, now deceased, gave important testimony respecting the lumber purchased and added to the yard, after defendant’s contract of purchase, and the price paid therefor, The defendant introduced one G. G. Bennett, his attorney at the former trial, for the purpose of proving by him the testimony of this deceased witness.

• Bennett testified, referring to a copy of the schedule attached to defendant’s amended -cross-petition, that Ellis testified upon the former trial that plaintiff through his agent bought in Muscatine the lumber charged in cross-petition to have been bought of B. ITershey, and that this lumber was shipped to plaintiff at Washington.

. Upon cross-examination Bennett was then ashed what Ellis stated on cross-examination.

- The witness replied that he could not state; that he thought that the deceased witness was cross-examined very little.

Plaintiff then moved the court to exclude the evidence of Bennett, because he could not remember and state the evidence of Ellis on cross-examination. The court overruled the motion, and plaintiff excepted. This action of the court is assigned as error.

The testimony of this witness should have been excluded. One called to give the testimony of a deceased witness must be able to state the substance of all that was said on the particular subject, not only on the examination-in-chief, but on the cross-examination also. Otherwise, the party would be denied the advantage of one of the most important auxiliaries in the ascertainment of truth, the right to cross-examine the witnesses opposed to him. This proposition is so elementary that an extended citation of authorities is not necessary nor proper. See 1 Greenleaf on Evidence, Sec. 165, and authorities cited. In this case it seems that Ellis testified only respecting the purchase of lumber at Muscatine. He was cross-examined the witness admits; yet he is not able to give any of the cross-examination. The plaintiff’s motion.to withdraw this testimony from the consideration of the jury should have been sustained.

2. PRACTICE: in the Supreme Court: bill of exceptions. II. The cause was tried July 31, 1872. On the 11th of August, in vacation, the bill of exceptions was settled and signe(i- It is now insisted that a bill of excepti°ns cannot, even by agreement, be settled after the adjournment of the term. Section 2831 of the Code, 3106 of the Revision, provides: “ The party objecting to the decision must at once present his bill of exceptions; unless the court or adverse party object* he may have time to do so, not extending beyond the term.”

We do not think it was the intention of this section to prevent the parties from making an agreement that the bill of exceptions should be signed after the close of the term.

It provides that unless the adverse party or the court object, the party desiring a bill of exceptions may have time to present the same, not extending beyond the term. If no affirmative act is done by the opposite party or the court, if no objection is interposed, then, by tacit understanding, as a matter of course, and without any agreement, the party may have time to present his bill of exceptions, not extending beyond the term. But if the parties affirmatively agree to extend the time for the settlement of the bill a certain number of days beyond the adjournment of the court, such agreement is not, we think, under this section invalid.

The uniform practice, we believe, of the nisi prius courts has been to settle bills of exceptions after the adjournment of the term, where parties consent thereto. And this practice has been at least impliedly sanctioned by this court. The exercise of this power seems almost indispensable to the proper disposition of business in those courts.

Tliis court has in numerous cases arising upon motion, and which have never been reported, recognized the validity of bills of exceptions signed by agreement after the adjournment of the term. All that has been required in such cases is that the bill shall have been settled within the time agreed upon.

The case of St. John v. Wallace, 25 Iowa, 21, recognizes, by implication, the legality of such a procedure.

3__. exceptions. III. The appellant urges various objections to the instructions given, and to the refusal to give those asked. The bill of exceptions states: “No one of the exceptions £pe c|iargej p[ie instructions given, or the modifications of instructions, or the refusal to give instructions, were taken at the time of trial, nor were they taken in any. other way or time, than being now embraced in this bill of exceptions and referred to in the motion for new trial.” The motion for new trial was presented upon the same day that the bill of exceptions was signed. '

Exceptions to the giving or refusal to give instructions must be taken at the time of the court’s charge to the jury, or within three days after verdict. Code, Secs. 2786-7 and 9.

It follows that the exceptions in question were not taken in proper time, and that none of the errors assigned upon the giving, or the refusal to give instructions, can be considered. For the error before noticed, the judgment is

Eeversed.