13 Minn. 434 | Minn. | 1868
By the Court -By stipulation the above entitled actions were tried below together. They were argued together'in this Court, and present the same questions for our determination. The jury having brought in a general verdict for the defendants, the plaintiff moved for a new trial for the reasons “ (1) that the verdicts are not justified by evidence; (2) that the verdicts are contrary to law; (3) that there were errors in law occurring at the trial and excepted to by plaintiff.” The motion was granted, and it would appear from the opinion of the learned Judge below, which comes up here in the paper book, that it was granted principally, if not altogether, on the ground that the verdicts were not justified by the evidence. The appellants insist that these cases are to be decided by this Court as if the motions for a new trial were made here de novo, and that the granting of a new trial is not a matter of “discretion in the presiding Judge, but to be determined by this Court upon the rules and principles governing such motions,^without regard to the opinion of the Court below.” To this we do not agree. As the statute confers the right of appeal from an order by which a new trial is granted on account of the insufficiency of the evidence to justify the verdict, it is obvious that cases are contemplated in which it will be the duty of the appellate Court, upon a careful review of the evidence reported, to reverse the order appealed from. If this is not so, if the opinion of the presiding Judge upon the weight of evidence is conclusive in all cases, then the right of appeal is a delusion, and the legislature in pretending to confer the right, would be convicted of trifling with' the administration of justice, an idea not to be
Except as to those who immediately participate in its perpetration, it is usually committed with a secrecy and cunning which hide it to a greater or less extent from common observation. Hence it follows that fraud in transfers of property to the prejudice of creditors, is generally made out by evidence of circumstances surrounding the transaction which are recognized and permitted to go to a jury as badges and earmarks of fraud.
It is to the abundant testimony of this character in this case that we think the learned judge below has failed to give due weight. It would be impossible to do justice to the case made out by the defendants, as against the case made by the plaintiff, without recapitulating almost the entire testimony contained in the return, but upon a painstaking examination of all the evidence, we are satisfied beyond any reasonable doubt, that the verdict of the jury was supported by the clear and manifest weight of the evidence. Few, if any instances, have fallen under our observation, in which fraud in the transfer of property to the prejudice of creditors, has been made out by evidence more clear and convincing than that which was laid before the jury in this case.
In arriving at this conclusion we have not only examined this testimony with care and reflection, but we have endeavored to give to the opinion of the learned judge who presi
In the written decision of the Court below, upon the motion for a new trial, we find some suggestions upon the point that the verdict was against law. The admissibility of certain testimony was discussed upon the argument here, and is alluded to in the opinion of the Judge below. The testimony was offered for the purpose of showing that some of the plaintiff’s witnesses had made statements out of Court contrary to what they had testified upon the trial. . It is well settled that the credit of a witness may be impeached in this way, “But it is only in such matters as are relevant to the issue that the witnesses can be contradicted.” 1 Or. JEv., seo. 462, (3.) In these cases the plaintiff attempted to prove the good faith of the transfer of goods, (which the defendants claim to be fraudulent,) and to repel any presumption, inference or imputation of fraud in the same, by showing what the considera ’ tion for the transfer was, and its amount and nature. It is obvious that testimony introduced for this purpose and tending to prove these facts, was relevant to the issue of fraud, or no fraud. And if it was, there can be no doubt that testimony tending to show that the plaintiff’s witnesses had made statements out of Court contradictory to what they- testified upon the stand on these points, was admissible under the rule as laid down by Prof. Greenleaf. The fact that the statements, the proof of which was objected to, were the declarations of the alleged fraudulent vendors, does not affect their competency for the purpose of impeachment.
These'statements are not substantive testimony, that is to say, they are not evidence of the truth of the matters stated, but their force and effect is to be strictly confined to the ob
The order appealed from is reversed.