108 F. 138 | 9th Cir. | 1901
after making the foregoing statement of facts, delivered the opinion of the court.
. This suit was instituted by Mrs. Harriet Wood, a sister of Judge Davis, deceased, against Andrew J. Davis, Jr., the First National Bank of Butte, Mont., James A. Talbott, formerly special administrator of the estate of Andrew J. Davis, deceased, John H. Leyson, as administrator with the will annexed of Andrew J. Davis, deceased, and John E. Davis, as administrator of the estate of John A. Davis, deceased, to enjoin the defendant Andrew J. Davis, Jr. (who will be hereinafter designated as “Andy”), from availing himself of a judgment obtained by him in the district court of Silver Bow county, state of Montana, and affirmed in the supreme court of that state, which declared and adjudicated that Andy was entitled to 950 shares of the capital stock of the bank. The theory upon which the suit was brought and tried is that the judgment obtained by Andy in the state court was procured by fraud, conspiracy, and collusion, and that Andy should not, in equity, be allowed to avail himself of or to derive any benefits therefrom. The history concerning the prior litigation, and the essential facts in relation thereto, and the specific allegations in the bill of complaint as to the alleged frauds, conspiracy, collusion, and wrongdoing of the parties defendant herein, and of all the counsel for the respective parties, are sét
At the threshold of any discussion herein it becomes necessary to determine the scope of our power and the extent of our duty in the premises, and to ascertain whether or not there is any limit in equity to' the inquiries we are herein called upon to make. It is admitted by appellant that this court cannot, in this suit, review or set aside the judgment obtained in the state court. As against the parties in that suit the judgment rendered in the state court is final. But if it be trae that it was procured by fraud, of which the complainant had no knowledge, and, but for sucb fraud, it would not have been obtained, then it would be against equity and good conscience to allow the party who had won his case by fraud, collusion, perjury, or • conspiracy to reap any advantage or benefit by such fraudulent acts. Any judgment thus rendered upon a false, fraudulent, and fictitious record does not possess any verity in the law, and can always be assailed in an independent suit brought by any party interested who is not a party to the action, and did not participate in the fraud, or have any knowledge of it until after the judgment was obtained and became final. The general rale upon this subject is well expressed in Marshall v. Holmes, 141 U. S. 589, 596, 12 Sup. Ct. 62, 64, 35 L. Ed. 870, 873, as follows:
“While, as a general role, a defense cannot he set up in equity which has been fully and fairly tried at law, and although, in view of the large powers now exercised by courts of law over their judgments, a court of the United States, sitting in equity, will not assume to control such judgments for the purpose simply of giving a'new trial, it is the settled doctrine that ‘any fact which clearly proves it to he against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law,, or of which he might have availed himself at law, hut was prevented by frau'd or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery.’ Insurance Co. v. Hodgson, 7 Cranch, 332, 336, 3 L. Ed. 362; Hendrickson v. Hinckley, 17 How. 443, 445, 15 L. Ed. 123; Crim v. Handley, 94 U. S. 652, 653, 24 L. Ed. 216; Metcalf v. Williams, 104 U. S. 93, 96, 26 L. Ed. 665; Embry v. Palmer, 107 U. S. 3, 11, 2 Sup. Ct. 25, 27 L. Ed. 346; Knox Co. v. Harshman, 133 U. S. 352, 154, 10 Snp. Ct. 257. 33 L. Ed. 586; 2 Story, Eq. Jur. §§ 887, 1574; Floyd v. Javne, 6 Johns. Ch. 479, 482. See, also, U. S. v. Throckmorton, 98 U. S. 61, 65, 25 L. Ed. 93.”
To the same effect, North Chicago Rolling-Mill Co. v. St. Louis Ore & Steel Co., 152 U. S. 596, 615, 14 Sup. Ct. 710, 38 L. Ed. 565.
“The new trial is never granted in terms. There can be, in no such case, anything like another trial in the court of law. The case is effectually ended there. But where there was a distinct and decided fraud in the proceedings by which the judgment at law was obtained, — as by putting in testimony Xvhieh the party believed to be false; by giving no notice of the suit, or one calculated to mislead the defendant, and thus deprive him of an opportunity to be heard in the trial at law; or, in any similar mode, making the trial at law fictitious or fallacious; and also where the defendant at law, through accident or mistake, and without default in the proper degree of watchfulness and care required of careful men in their own concerns of equal importance, fails to present his defense fully, — courts of equity will, in their dis-, oretion, grant relief by re-examining the case upon its merits, * * * enjoining the party from pursuing the judgment at law.”
It is equally well settled by the authorities that the mere fact that false testimony was given or procured in the trial of the case in the state court by the successful party is not of itself a sufficient ground for enjoining the enforcement of the judgment, unless it clearly and satisfactorily appears that there is a reasonable certainty that the result of the judgment or of a new trial would have been different if such false and fraudulent testimony had not been given. In Dringer v. Railway Co., 42 N. J. Eq. 573, 581, 8 Atl. 811, 815, the vice chancellor, in reviewing this question, among other things said:
“A court of equity may unquestionably annul a judgment or decree which has been obtained by fraud, but, in order to justify such an exercise of power, it must be made clearly to appear that the judgment or decree has no other foundation than fraud; in other words, it must be made to appear that, if there had been no fraud, there would have been no judgment or decree. An attempt to exercise a wider or more liberal jurisdiction in cases of this class would, it will be perceived, necessarily enlarge the jurisdiction of courts of equity so as to make them practically courts for the review of the judicial acts of other tribunals, and not tribunals with just sufficient power to redress frauds by undoing what fraud has done. * * * A simple statement of the ground upon which jurisdiction in such eases rests shows that, unless the decree assailed is shown to be the sole and direct product of the fraud charged, this court has no authority whatever either to annul or change it, for its jurisdiction is unalterably limited to the simple undoing of what fraud' has done. It is therefore clear that, if this decree has any other foundation than the fraud here charged, this court, even if convinced that the decree is unjust according to the real right of the case, cannot disturb it.”
The principles announced in these decisions are sustained by numerous authorities, a few of which we here cite: Ross v. Wood, 70 N. Y. 8, 12; In re Griffith’s Estate, 84 Cal. 108, 112, 23 Pac. 528, 24 Pac. 381; Pico v. Cohn, 91 Cal. 129, 133, 25 Pac. 970, 27 Pac. 537, 13 L. R. A. 336; Smith v. Allen, 63 Ill. 474; 3 Pom. Eq. Jur. §§ 1362-1364; 1 Story, Eq. Jur. § 252a; 3 Enc. Pl. & Prac. 629, 630, and authorities there cited. In the light of these general principles we will proceed to examine the testimony contained in the record to see what, if any, of the material charges of fraud, collusion, conspiracy, bribery, or corruption alleged in complainant’s bill are established by the evidence; and whether or not those which are proven, if any, are of such a character as to justify this court in granting the relief prayed for herein. As to the character of proof necessary to sustain the charges it - must constantly be borne in mind that fraud is never presumed. It may, however, be inferred
“Tlie rule is of long standing, and is of universal application, tliat the .evidence tending to prove the fraud, and upon which to found a verdict or decree, must he clear and satisfactory. It may bo circumstantial, but it must be persuasive.”
It is difficult to separate the various charges of fraud against the different parties so that they can be indejiendently discussed. They are all more or less interwoven with each other, and so blended together as to make it necessary, to.some extent, at least, while considering the charge against one, to refer to its association with the acts and conduct of the others. At the bottom of the whole case lies the charge of collusion and conspiracy, which in one fell swoop includes everybody that was in any way connected with the case on the side of Andy. Nevertheless, keeping consíantly in mind the relation which each witness and each party hears to the whole case, we will endeavor to classify them under separate heads.
1. As to W. C. Darnold. This witness, as painted in the record before this court, is stained with perjury, bribery, and corruption to such an extent as to justify the statement that his testimony given at the trial of the state court must he considered as wholly unworthy of belief, and- absolutely false. If, therefore, the case in the state court rested upon his testimony alone to establish the fact that Judge Davis made a gift causa mortis of his bank stock to Andy, it might, of itself, he deemed sufficient to enable the complainant to maintain this suit. Bui: the fact is that the question as to the gift in the state court did not depend alone upon the testimony of Darnold. His testimony was simply corroborative of the testimony of Talbott that the gift was actually made. We have no means of determining what effect his testimony had upon the mind of the district judge in deciding the case in favor of Andy. His testimony was important. Standing unimpeached, it was entitled to great weight, and tended strongly to show that the gift causa mortis must have been made by Judge Davis to his nephew, as testified to by Talbott: and it may he that the district court in deciding the case gave full credence to Darnold’s testimony. But a motion for a new trial was made, one of the grounds thereof being that Darnold had testified falsely at the trial. In support of this ground the counsel for the plaintiff in that case procured the affidavits of two witnesses, — Curtis and Boyce, — both, of whom stated that Darnold had confessed to them that he; swore falsely upon the trial of the case in the district court. In addition to this,
“The same evidence produced on this trial, if the testimony of Darnold were excluded, would he abundantly sufficient to sustain the conclusion reached by the district court; and courts will not grant new trials where it is apparent from the record that the result would probably be the same. U. S. v. Biena (N. M.) 42 Pac. 70.”
It is thereforé manifest that the testimony of Darnold, however false it may be admitted to be, will not warrant any interference with the judgment obtained by Andy. But it is strenuously argued that his testimony was procured pursuant to the conspiracy alleged in the bill to get the bank stock for Andy; that, in furtherance of this general plan, Darnold was held- back as the last witness, and then spirited away by means furnished by the chief conspirators acting in collusion with the counsel employed by Talbott'; that he was kept away until the trial was over, and during his absence “was wholly supported” by Andy; that, although the counsel were told that Darnold had committed perjury, and informed that he could be impeached by the production of the books of Boyce, where Dar-nold was employed at the time he testified he was out of employment and had the conversation with Judge Davis, but counsel did not produce the books of Boyce; that Darnold made an affidavit confessing his perjury; that this affidavit, procured at the instance of Boyce, was placed in the hands of the counsel for plaintiff, and was by them suppressed; that other impeaching testimony against Darnold, known to Talbott and his counsel, could readily have been obtained, but, owing to the conspiracy, was not procured on the motion for new trial; that, with the knowledge of Talbott, Darnold was furnished with the sum of $1,500 in payment of his “false and perjured testimony”; that since that time Andy has paid him “large sums of .money” in compensation for his “false and perjured testimony”; that, in response to the letter marked “Exhibit A,” Andy “from time to time” has paid “to Damold various sums of money, and has had various interviews with him, all touching the said fraudulent testimony,” etc. What does the testimony in this case show in relation to these alleged acts of collusion and conspiracy? Is there any evidence to sustain these charges, or either of them? What do.the proofs show? There is some hearsay testimony as to certain declarations alleged to have been made to Boyce by Dar-nold,. and by others, that are well calculated to create suspicion “of
“Q. You say Darnold liad been living with you some months before the hank trial? A. Yes, sir. Q. What was his- condition as to clothing and money at the time he was living with you? A. He was impoverished; destitute condition. Q. After giving his testimony at the hank trial, did you notice whether he had any money? A. He had some money. Q. At the time he made his confession to yon, was that at some restaurant in Butte, do you remember? A. Yes, sir. Q. Who paid for the dinner? A. Darnold did. Q. Did you. see him have any money? A. X did not see any large amount. He had some money.”
Boyce further testified that, after Darnold bad signed the affidavit admitting that be had sworn falsely, he was so “afraid of the law” that he (Boyce), out of pity, more than anything else, gave liim §75, and took his note therefor, payable on demand, and after-wards received a “paper from him that he considerd it settled” on account of “work I have done for you and will do for you on these books.” It -does not appear that Andy ever replied to the letter exhibit A; that he ever paid any money to Darnold on account of the matters therein referred to. This letter is peculiar. It shows, according to its story, that there were two parties deeply interested in Darnold. One party had used him. The other party wanted to have like favors from him. If granted, they stood ready to compensate him for such services. They only wanted him to tell the truth. But they were willing to protect and shield him if he would rescind his former testimony, “even to the verge of perjury,” and that they would see that “he was fully protected to any amount.” It does not appear who gave this assurance, — whether it was complainant, the witness Boyce, or other persons. He prefers,'however, to give Andy the first call, and only demands the “one-hundredth part” of what his services in giving the false and perjured testimony in Ms own estimation were worth, to wit, $10,000, and iu a friendly spirit, “not in the way of a threat,” informs him the money must be paid to him “personally,” and that, if it is so paid before “to-morrow,” assurance is given that he would be able to resist “any pressure that may be brought to bear upon him by the opposite party.” The letter speaks for itself. It needs no interpretation. Boyce, who is complainant’s chief witness, knew all about the letter at the time it was written. On the trial he produced the original letter, signed by Darnold, and testified that a copy thereof was sent by a messenger and delivered to Andy, who gave a receipt for it; and that the copy
2. As to the failure of counsel to cross-examine certain witnesses. Under this head we will refer to the witnesses who testified that they had heard Judge Davis state that he intended to give the bank to Andy. Upon this point but little need be said. The record does not show that there were any facts within fhe knowledge of any of these witnesses that could have been brought out upon cross-examination that would have been of any benefit to the plaintiff’s case in the bank suit. The truth is that the complainant in this suit did not introduce any testimony whatever reflecting in any manner upon the veracity of any of these witnesses. Complainant’s counsel, speaking of these witnesses, say:
“They wore almosi universally old friends, or depositors in tlie bank. * * * Mr. Toole should have cross-examined these witnesses on tee hank trial to find out their relations to Andy, and the fact of their indebtedness to him or the bank. * * ~ Substantially, no cross-examination was had of any of the witnesses, and absolutely no cross-examination of most of them. ¡S'o attempt was made to impeach them, or contradict them, or show their relations to Andy. They passed before the court with their statements un-contradic-ted. This fact itself is suspicious.”
The truth is that, notwithstanding complainant’s counsel, aided by Boyce/ whom they term their “co-counsel,” had scoured the country in search of testimony that would impeach any or all of Andy’s witnesses, they found nothing whatever that would impeach, or 'tend to impeach, any of these witnesses, and they stand in the record before us, as they did in the state court, “with their state
3. As to the acts of Leyson. Mr. Leyson was not appointed administrator of Judge Davis’ estate until long after the trial of the action in the state court about the bank stock. His act which is alleged to show the conspiracy lies in the fact that, after the decision of the supreme court affirming the judgment of the district court in favor of Andy, he refused, upon the request of parties interested, to sue out a writ of error to the supreme court of the United States, assigning as a reason that he had consulted with his own counsel upon this subject, and had been advised by them that there was no federal question that would justify him in taking a writ of error. This action by Leyson did not prevent the other parties who made the request from taking the case to the supreme court on a writ of error, or deprive them of any of their rights. In fact, they did take the case to the supreme court, and that court held 'it had no jurisdiction, because no federal question was involved. Leyson v. Davis, 170 U. S. 36, 18 Sup. Ct. 500, 42 L. Ed. 939. This fact clearly proves that the administrator was fully justified in the course he pursued. The charge of conspiracy or fraud in this connection is too1 flimsy to require further comment.
4. As to Andy. It is claimed that when the bank suit was begun Andy knew that he had no right to the bank stock, and had so declared to numerous persons after the date of the alleged gift; and that the new evidence introduced upon this point clearly shows that Judge Davis never made the gift of the bank stock to Andy; that the whole claim on his part is fraudulent and fictitious, etc. What is this new evidence? Complainant first introduced a letter dated February, 1890, written by Andy to his uncle Calvin Davis. This is set forth in full in the record. It is a family letter. The only portion relied on reads as follows:
“Dear Uncle: * * • Uncle Andrew lias been very sick, but is improving, and I hope will soon be himself again. * * * His condition worries him. And again he worries considerably because he has-not fixed his business so it will be settled according to his wishes after he is gone. He says it is too late to fix matters now. I have consulted Judge Knowles and Dixon, and they say he is not in fit condition to fix his affairs at present. I ■hope he will soon gain his'reason, and fix his affairs to suit himself, and then take a trip, and try and enjoy some of the money he has worked so hard for.”
If there was no business that worried Judge Davis except the bank stock, it might be inferred that he was its owner at the time this letter was written. But the fact is that he was possessed of other property to the value of about $4,000,000. This was of itself sufficient to worry any man, whether in good or poor health. Moreover, the testimony herein shows that the judge had been iñ con
“Pienso write me, and instruct how to address a telegram, for fear I may have to wire you. We are taking good care oí Andrew, and the doctor says all we can do is to keep strangers away from him, and not let him get excited. He is with the German family who have taken care of him for years.”
This letter does not in any manner impeach the making of the gift as claimed by Andy", but is, in its entirety, consistent therewith. Does it seem reasonable that Andy, in such a letter, would have advised his uucle Calvin that the judge had made a gift cansa mortis of the bank stock to himself? The probabilities are all the other way. His uncle Andrew, the judge, might possibly recover. If the gift had been made, it was, nevertheless, subject to revocation at any time before the judge’s death. Why should he advise; Calvin of the gift? Common sense — which is the soul of reason — plainly indicates to the thinking mind that he would not have done so. But it is claimed that Andy, in common-place conversations with other parties, and evidence given by him in open court after the death of the judge, absolutely admits that no such gift was made; that these matters were deliberately suppressed by the collusion of Talbott’s counsel with Andy. Can this claim be sustained? Mr. Wohrspaun testified upon the trial of this suit that Andy, the day after he returned from the burial of Judge Davis, about the 14tii or loth of March, 1890, came to his residence, and took therefrom certain trunks, books, field glasses, and a pair of blankets that belonged to the estate of the judge, and thereafter took a fur robe, and lion skin, and some other things. It appears, in this connection, that Andy’s sleeping apartments at the bank bad been burned out, a,nd that Andy said he had use for the blankets.
“Q. What did lie say about having use for the blankets? A. He said there was not any testament. He did not know if the judge had left him anything. Q. How did he connect that statement with the blankets? A. * * * I think he made this remark: He did not know if the judge had left him anything or not, and he took the blankets. He said he had need, for them.”
“Well, Andy took the blankets. He says: ‘I do. not know. I have not got very much. I -will need these blankets. I do not know whether my uncle left me anything or not.’ ”
On her cross-examination she said:
“Andy was always joshing a great deal. He took, the blankets, and said: ‘I will need these. I do not know whether the judge left me anything or not.’ Q. That was about the remark he made? A. In a joshing way. Q. You did not understand he said that seriously? A. No. I did not think he meant it seriously. Q. You understood it was a sort of a joking remark? A. Andy was there most of the time. He was like one of the family. I did not pay much attention to what he said. Q. You took the remark in that way, however, — in the way of a joke? A. Yes, sir.”
Comment on this incident seems unnecessary. The reply of Mrs. Wehrspaun sufficiently explains the whole conversation. No one ought to be solemnly bound in a court of justice by such idle, casual, and joshing remarks. And counsel for Talbott in the bank suit should not be censured and charged with collusion and conspiracy because, with knowledge of the facts, they failed to consider the conversation of sufficient importance to be introduced at the trial of the bank suit. The charges in this respect are not sustained.
The day of the funeral of Judge Davis, Mr. Boyce had a conversation with Andy, and with reference thereto testified as follows:
“Did you have a conversation with Andrew J. Davis, Jr., on the day of the funeral of his uncle? A. I did. * * * Q. Now, Mr. Boyce, you may give in full that conversation you had with Andrew J. Davis, Jr., on the day of the funeral. A. Well, it was only a brief conversation. I shook hands with Andy. I was a pallbearer, and simply asked Andy this question: T suppose that the judge has provided for you, Andy?’ Andy says to me that he had not; that he was solely dependent upon his salary; left solely dependent upon his salary.”
This conversation, like, the last, proves nothing. It was brought out by the inquisitiveness of Boyce at a time and occasion when such a subject might seem 'out of place. Boyce and Andy were not intimate friends. The motive of the inquiries must be looked at, as well as the falsity of Andy’s answer, if it were false. It was not made under oath, nor to a friend in confidence, when the truth would naturally be told.
In Hewitt v. Lucas, 42 Ill. 296, 299, the court said:
“We should be establishing a most dangerous precedent if we were to hold that random expressions, used in casual conversations, sworn to after a long lapse of time, and improbable in themselves, can be made a sufficient basis for awarding a new trial.”
Boyce, immediately after his statement as to the conversation on the day of the funeral, gave the following testimony:
“Q. Did you have other conversations with him in the bank, in March, 1890, as to the proposed testimony to be given by you in the bank suit? A. I had two conversations with him after in the bank, up in his room. Q. You may state those, please. A. In one of these — the first one — I have the original. I have a diary of it as to the date and what was said. * * * Q. State, if you can recollect, the substance of the conversation, if you can remember. A. Well, I have got the exact words; but I cannot recall them at this particular time, because I feel a little bit worried, and I want to testify to what I know are the exact words as far as I can. * * * • Q. Have you got this memorandum with you to-day? A. No, sir; I have not.”
“1 liad two talks with Mr. Davis in the hank, in his room upstairs. 1 was making a deposit, and lie called me upstairs in liis rooms, and I had a private ialk with him. Q. State what you said and state what he said at that time. A. Well, Andy opened the conversation with me in this matter. He said that there were certain persons had heard Judge Davis say that he intended to deed — give—him the bank stock, and, in view of my intimacy with the judge, that tie liad no doubt I had heard him say this, and, if X had, it would be of material benefit to him; that if he could prove by Mr. Talbott and myself and some others that we had heard Judge Davis say that he intended to give him this hank stock, or had given him this bank stock, that he could set up a claim for this; that he was so advised, etc. Q. Did you have another talk a few days afterwards with Mr. Andrew J. Davis on the same subject? A. Yes. sir. Q. State what occurred then. A. He called me up again into the same room. Asked me if X had considered this matter, and that if I could so state that I had hoard Judge Davis say he had intended to give the bank stock to him, or anything of a similar character. I told him, ‘No, 1 did not.’ Q. Wliat, if anything, was said by him in that connection, as to your affairs, if you could give this testimony? A. Well, he did not say anything directly except this: that, of course, in view of my intimacy with the judge, and the relationship that existed between us, that there would he no particular advaniage in regards to myself. No promises further than it would be quite a favor that I could confer upon him, which I understood would he reciprocated to a certain extent. Q. * * * You did not tell Air. Toole about these talks at the trial? A. No. Q. Did you tell Mr. Toole about these talks with Andrew J. Davis, Jr., before you made your affidavit? A. I did.”
There is nothing unnatural in these conversations; nothing to indicate by thought, word, or deed that the gift had not been made. We must place ourselves in Andy’s situation in order to ascertain the meaning and the extent of these conversations, and the effect that should be given them. Judge Davis was dead. It was supposed he had died intestate. lie had "many heirs. He was possessed of a vast estate. Nothing would be more natural than to anticipate; litigation in regard thereto. Whatever gifts or other disposition he had made, if any, during his last illness, would undoubtedly be contested, and a bitter legal fight was sure to be made in regard thereto, as well as to the balance of the property. Andy knew, as he told Boyce, that there were several people who had heard the judge say that he intended to give the bank to him. Jle knew that Boyce was intimately acquainted with the judge, and thought that Boyce might have some knowledge as to the judge’s talks with him upon the subject. What could be more natural than to find out the facts whether they should be in favor of or against him? Whether the information should come from friend or foe? There is not anything mysterious or suspicious about these conversations. Nothing whatever to furnish even a suggestion that Andy was trying to obtain any testimony from Boyce that was not true. No promise was made by Andy. No inducement whatever was held out to Boyce tending in any degree to have him make a false statement. The conversations are not susceptible of any interpretation which would lead to the belief that Andy did not at that time claim that a gift of the bank stock had been made to him. In the very nature of things, he must have known, if the gift had been made, that: Talbott was the only witness to that transaction. All that he
This brings fis to the testimony of Andy given in the administration proceedings to ascertain the value of the judge’s estate, in April, 1890, in order to enable the court to determine the amount of the bond which the special administrator should give. It is claimed that this testimony was suppressed at the bank trial, and that it proves there was never any gift, causa mortis of the bank stock, and tends to show fraud in the cause of action itself. The stenographer who had taken the testimony of Andy read from his notes on the cross-examination of Andy by Mr. Meyers, of counsel for Mr. Root in the contest by the heirs for the estate:
“Q. Are there in that hank at the present time any certificates of stock of the First National Bank of this city standing in the name of the deceased? A. The stock ledger shows there is stock in his name. Q. Are there any certificates contained in that hank in the name of the deceased? A. No, sir. Q. Were there, at the time of his death, certificates of hank stock? A. There may have been in the bank vault; yes, sir. Q; Do you mean to say yon are in doubt about it? A. Yes, sir; they may have been in my pocket. Q. At the time of his death? A. Yes, sir. Q. When are you sure they were in the bank and not in your pocket? A.1 Last night. Q. With reference to the time of his death, when did they first come into your pocket, as far as you can recollect? A. December, 1889. Q. Who gave them to you then? A. The deceased. Q'. Where? A. At his room, at his residence. Q. What did he tell you to do- with them? A. He told me to take them and keep them. Q. For whom? A. For myself. Q: Did he say that? A. Yes, sir. Q. Why do you hesitate? A. I hesitate to think. He did not say it in just those words. Q. What words did he use? A. As near as I can remember, he told me to take these certificates and keep them. We had quite a talk, and it was a very affecting talk. He gave me to understand that he was just carrying out his promise. Q. Kindly tell us to the best of your knowledge what he said on that occasion? A. He was preparing to go away. He asked me to bring his little tin box down. That is this one in court. He opened it, and - started through the box. He had been talking two or three days before*161 about going away, etc., anti be took out some of tbe certificates, and asked me bow many shares were represented in this, and I told him. Q. How many did you tell him? A. I do not know how many I told him. X figured it up, and told him bow many were there. I told him there was more in his name. He asked me if that was all. I said, ‘No,’ there was many shares more. I started through tbe box then after I put them altogether folded them up, and handed them to him. He took them, and handed them back to me. He told me they were the stock. He wanted me to takei it and keep it. He told me he was going away, and ho did not know as he should ever return. He gave me to understand that life was uncertain. He might meet with an accident, and he had promised it to me; that X liad worked for it, and deserved it. That is what he said on that occasion. I may have left one word out. I cannot repeat it word by word exactly what he told me. He wanted me to take it, and keep it. Xfc was mine in case anything should happen to him. * « * Q. Are you sure that he said it was yours if anything happened to him? A. Yes, sir. lie referred to different things, — railroad accidents and death, — and he was not feelmg well when he left here. ® * * Q. Did he indorse any of the certificates in writing? A. No, sir. Q. Do you know why not? A. I think I do; yes, sir. * * Q. Do you know why not? "What did he say to you on that subject? A. Nothing. Q. What fact is there within your own knowledge explanatory of his failure to sign them? A. Well. I do not know, unless it is that he intended, as long as he was alive, to have that slock for himself. * * * Q. Do you mean that he gave it to you. in common phrase, ‘with a string to it'? A. I might call it that way. Q" Then he gave it to you. and yet retained ownership in it himself? A. I suppose he wanted it to stand in his name; wanted no other person to own it until after his death. * * * Q. What did he say? A. I do not remember exactly what lie did say. Q. Give it altogether as near as you can. A. Of course, it would take me some time to think of it. You do not understand the relations between Judge Davis and myself, and do not understand what 1 thought of him, and what these moments meant. It was talk that happened before two or throe times, — talk that he was about to die, being sick. And I would always try and encourage him, — tell him that it was not so; and for that reason 1 would only catch a word once in a while. I would not hear it all. And, besides that, Judge Davis’ speech was not clear. I could understand it, but he would muffle. He could not control the right words when lie got to talking on these subjects, and really I could not say what he said about dying at this particular time. Q. Tell us as near as you can. A. He gave me to understand that he was going away to take a trip for the benefit of his health, — that he really did not want to go,- — to see if he could nor improve some; and that he did not care about going. He would just as lief remain home, but thought it was necessary to prolong his days. He started out in that way, and I would brace him up about that. He would say there might be a railroad accident, or something of that kind. I am not sure about it word by word. This is just the incident. Q. Of course, this is a matter to which you have given some thought since his death? A. Yes, sir.”
At this point in the testimony there was an objection interposed that this witness was only offered as to the valuation of the property. The court then said:
“The testimony has gone far enough to show that there will be a controversy about this, and the court is not called upon to pass upon this controversy. The court will take into consideration this question, and the possibilities of the case.”
The testimony proceeded as follows:
“Q. Who was present at the time of this conversation? Your answer was, ‘Mr. Talbott,’- — and who else? A. No person. Q. And you have told the conversation as near as you can recollect it? A. Of course, other conversations might refresh my mind; but this is all I remember. Q. Was there any meeting of stockholders or election of stockholders after that? A. Yes, sir. Q.*162 tVIioii? A. Along in January some time. Q. Who rotecl that stock? A. John E. Davis. Q. Your brother? A. Yes, sir. Q. Under a proxy? A. Yes, sir. Q. Prom whom? A. A. J. Davis, my uncle.”
Upon his redirect examination by John Forbis, the following testimony was given:
“Q. What did he [Judge Davis] say about the gift? Was it to take effect at that particular minute, or when was it to take place? A. When he was dead. Q. That gift was to take effect upon his death? A. Yes, sir. Q. Did he say anything about who would manage the stock during his lifetime for the hank? A. No, sir.”
It will be observed that there is much in this testimony that corroborates the testimony of Talbott, and tends to show that the gift was actually made. Some questions were asked and answered as to what he thought the judge meant or thought at the time, and it is in this respect that complainant’s counsel contend that his answers admit that there was no gift causa mortis made at that time. It is apparent, independent of any reference to other testimony upon the subject, that Mr. Meyers, in his cross-examination of Andy, was, in common parlance, “on a fishing excursion,” hoping to find something that might aid the heirs in bringing a suit to recover the stock from Andy. The court might very properly have said sooner thafi it did, whether any objections were made or not, that it would not hear any testimony concerning the merits of that case. The simple fact that there was liable to be such a suit was of itself enough to enable the court to determine what the amount of the bond should be, and that was the only question to be determined in the proceedings then before the court. It is seriously charged, however, that this evidence was willfully suppressed by the counsel for Tal-bott in pursuance of the fraud, collusion, and conspiracy alleged in the bill of complaint'. In limine, we pause to consider for a moment the position in which counsel for Talbott were placed with reference to the introduction of this testimony. It must be remembered that Andy was disqualified under the laws of Montana (Comp. Laws, §§ 646, 647) from introducing himself as a witness to establish the gift, and that, if they introduced his testimony in the probate proceedings, he could be called upon in his own behalf to explain (his testimony. Was it policy to do so? This was the suggestion eru-dently presented to their minds. Was it their duty to do so ? Upon this point men may differ in opinion. If they introduced the evidence, they would have to take the chances of an explanation being-given by Andy that might result disastrously to their contention that no gift causa mortis was ever made. Moreover, it was a doubtful question, at best, whether the testimony of Andy given at such' hearing was susceptible of being construed in favor of their contention. Under these circumstances counsel were called upon to determine their duty in the premises. They decided that the risk was too hazardous, and came to the conclusion that it was the better policy not to introduce it. They were called upon in advance to exercise their best judgment, and, if they did, and had no other motive1, and were not guilty of any fraud or conspiracy, it cannot be said that'the course pursued by them, even if they erred (which we do not
Complainant relies, among other things, upon the testimony of one Corbett, who was an attorney for the heirs in their contest for Judge Davis' estate. Waiving all the objections that were made to the admissibility of Corbett's testimony, we shall proceed to consider it. Mr. Corbett testified that he had frequent consultations and conversations with Messrs. Toole & Clayberg and other counsel during the trial of the bank suit, and then gave the substance of the conversation had with Mr. Clayberg, as follows:
“Q. State whether or not Mr. Toole or Mr. Clayberg ever Informed yon as to whether or not this declaration of Andrew .T. Davis, .Jr., was offered in evidence at the trial. A. Mr. Clayberg informed me that it was not. Q. Did you hear anything- stated by Mr. Clayberg at any time as to why not? A. Yes, I did. Q. Will you please state it? A. * * * I made some complaint that it had not been introduced, and asked why it had not been introduced. I remember the answer being something to this effect: ‘Well, if your client don’t want yon to do a thing, what are yon going to do about it?’ That was about the size of the expression or the effect of the expression. I think in fact that they were his very — very near the — exact words.”
Mr. Clayberg, when called as a witness, and asked what he had to say about Corbett's statement upon this point, replied:
“I thing Mr. Corbett is mistaken in regard to- it. I have no recollection of ever making any such statement as that. * * * Q. Would you or not remember, Mr. Clayberg, if you had made such a remark as that? A. I think I would.”
Mr. Clayberg, in answer to other questions, testified as follows:
“Q. What would you hare considered it as proper to do, as an honorable attorney, in a case like the bank-stock case, where your client and the plaintiff was acting in a fiduciary capacity, if he had advised or requested you to omit any testimony that was material? A. I do not think I would have paid any attention to it. All of us insisted that Mr. Talbott’s testimony was directly against us. and our instructions were to go ahead, aiid do the best we could in the case. I don’t think we would have listened to any suggestion he might have made as to the putting" in of testimony. Q. Did he at any time give you any directions or instructions as to what testimony you should put in or leave out? A. He never did to me. I don’t think he did to any one. Q. In tlie mailer of admitting this testimony of Andrew .T. Davis, did you or the other counsel in the case, so far as you know, follow anybody’s direction or advice, or did yon act upon what you thought was best for the interest of your clients in the ease? A. T don’t think anybody gave us any directions in regard to it at all. We acted according to what we believed to be the best interests of the case.”
Mr. Toole, was called as a witness, and testified as follows:
‘■Q. Was the testimony of Andrew J. Davis, Jr., in the proceedings on application for letters of administration used on the trial of the bank-stock cast; in the district court? A. It was not. Q. Why was it not? A. Well, sir; at the time the testimony- of Mr. Davis and Mr. Talbott was taken I think I was quite particular to draw out of them everything they knew- in reference to the alleged gift, and that, if there was anything wrong- about it, it would probably take them at a time when they- had not thoroughly examined it. I got. up, and went over to Mr. Meyers, * * * and suggested that fact to him. * * * We managed to get out about all that was possible to get from Mr. Davis, * * * and we did it for the purpose of ascertaining the exact condition of things with a view of the institution of suit on behalf of the heirs to determine the right to this bank stock. The question arose in a collateral way; that is to say, the examination as to the ownership*164 of this stock pertained solely to the question of the amount of bonds that was to be given in the ease by whoever was appointed administrator of the estate, and was not in any proceeding to make a final adjudication or determination of the title to the stock. It was collateral to that extent. The testimony was taken down by the stenographer, and copies furnished, as I have stated. Q. Did Hr. Andrew J. Davis, Jr., testify in the bank-stock case, do you know? A. Upon the trial of the bank-btock case he did not. Q. Did he offer to testify? A. He offered to testify, and we objected to his giving testimony on the ground that he was not a competent witness under the statute, and the court sustained the objection. Q. * * * I believe you did not get through in regard to the first question I asked you, as to why? A. I did not complete that.. * * * We held divers consultations upon the propriety of introducing the testimony of Andrew J. Davis, Jr., that had been given upon the trial in the probate matter, and came to the conclusion that it was not policy to do so. We were all unanimously of the opinion that if we sought to introduce any portion of that testimony, that they would have the right to have it all introduced; and we were also of the opinion that it would render Mr. Davis a competent witness to go in and explain any matters that would appear ambiguous or uncertain, and also give him an opportunity to make statements as to other matters- which he had offered to state. For this reason we did not deem it policy to introduce the affidavit, or, rather, testimony, that he had given on the trial of the bank-stock case, and for this reason we objected to him as being an incompetent witness. We were further of the opinion that his testimony would be damaging to us. As it was, it rested solely upon the testimony of Mr. Talbott, and we got a number of circumstantial facts which we considered tended to disprove his statement as to the actual execution of the gift and control of the bank.”
Who can say, in the teeth of all the facts, conditions, circumstances, and surroundings to which we have called attention, that counsel were not acting in good faith, and guided solely by the best motives, and in the exercise of sound judgment? Certainly, no impartial mind can say that therje was any fraud or collusion in withholding any of the testimony herein referred to upon the part of Andy or of Talbott’s counsel.
5. As to Talbott, special administrator, and his counsel. Tal-bott, as shown'in the statement of facts, was appointed special administrator of the estate of Andrew J. Davis, deceased. He was thereafter directed by the court to bring an action against Andy to recover the bank stock which' Andy claimed belonged to him. In bringing this action he employed the attorneys who had represented Boot in his contest on behalf of certain heirs against John A. Davis for appointment as administrator of Judge Davis’ estate. These counsel, if they were honest, upright men, would naturally do the best they could within the range of their legal ability to secure the bank stock for their former client, and to faithfully represent the special administrator in his effort ■ to recover the bank stock from Andy. It was natural for Talbott, as special administrator, if he desired to do his duty in the premises, to employ these counsel. His act in so doing was evidently satisfactory to the heirs who were represented by Mr. Boot, and to Mr. Boot himself. No complaints were made by them, or either of them, or by any of the parties interested, as to the employment of these counsel by Talbott. Throughout the trial of this suit Mr. Boot, who is an attorney, frequently consulted with Talbott’s counsel as to the best course to be pursued, and in many — not all — of the charges of alleged fraud and conspiracy against Talbott’s counsel of failing to cross-examine wit
“When Talhott testified at the bank trial for Andy, Mr. Toole and the attorneys for file plaintiff in the suit know that he was a man unworthy of belief, a gambler, and keeper of disreputable resorts; and nevertheless deliberately refused to impeach him, although he was the sole witness to establish for Andy a million dollar gift.”
What are the facts as shown by the testimony in relation to this charge? Complainant in this suit introduced three witnesses — Mrs. Niedenhofen, Ed. Potting, and William Wilson, — who each testified, in substance and effect, that they knew Talbott’s reputation in 1894, and at the lime they gave their testimony, for truth, and for honesty and integrity, in the community where he lived, and that “it was bad.” It incidentally appears from their' testimony that two of them had had differences with Talbott in certain transactions, and that, ill feeling existed on account thereof. Waiving, for the time being, the objections made to the admissibility of their testimony, we proceed to consider it. Mrs. Medenhofen was engaged in business as a merchant. Potting was her friend and partner in that business. She had known Talbott for about 20 years, but had only known him intimately for about 2- years. Her son married Talbott’s daughter in 1890. The son died one year and nine months after ho was married. The difficulty she had with Talbott related to the burial of her son. There was a controversy between the families as to where he should be buried. Mr. Wilson testified that he had known Talbott for over 30 years; that Talbott, in 1865, resided in Virginia City, and was “running a kind of a gambling joint — gambling house — at that time”; that he knew Talbott in Bear-town, in 1809, and that “he was running a small gambling house at that time”; that he knew Talbott in Deer Lodge, Mont., between 1870 and 1872, and that he was then engaged in “the same occupation, * * .* keeping a gambling house and saloon”; that he
That lie had fallen out with Talbott about two years ago, and had a pretty bitter feeling against him ever sinc-e. That he had run a gambling house himself at Deer Lodge and Butte, Mont., in 1870 or 1871. “That he never dealt anything but faro, * * * but they were square games. Gambling is different now to what it was then. Q. Will you please state what your own reputation is for truth and veracity in Butte? A. Of course, I say it is good. * * * Q. Mr. Wilson, do you consider that you are entitled to rank as a man of truth, honesty, and integrity in spite of the fact that you kept a gambling house? A. Yes, sir. * * * Q. Were you ever connected with Mr. Talbott in any of his gambling houses? A. Yes, sir. Q. You were a partner with him? A. Yes, sir. Q. Where? A. In Deer Lodge. Q. Whenever he run a gambling house there, you were in partnership with him? A. Yes, at one time. Q. That was the same character of a gambling house he ran afterwards? A. That he ran; yes, sir. Q. The sainé character? A. The same exactly in Deer Lodge. They were very similar. Q. Is it not a fact that that was a first-class gambling house? A. Square gambling at that time, both of them; that is, in my house, anyhow, it was square. * * * Q. Mr. Talbott was connected in the early days here with the most respectable gambling house in Butte? A. One of them; yes, sir. Q. Was it not the most respectable at the time he was in it? A. It was one of the most. It was a very respectable house, as far as that is concerned. Q. It was as good as any of them? Everything was on the square? A. Oh, yes.”
This witness was then asked as to his knowledge about Talbott having been employed in connection with the business of Judge Davis:
“Q. Do you know' that he remained as a confidential man of Andrew J. Davis, deceased, up to the time o’f his death? A. I know he has been a very confidential man with him. Q. In mining matters? A. Yes. Q. And that he did not gamble after that time? A. I never seen him gamble after that. Q. At the timé that Mr. Talbott ran a gambling house here, gambling was a legitimate business, authorized by the law of the state, — licensed,-—was it not? * * * A. Yes, sir.”
The district court, in rendering its opinion herein very properly said:
“If gambling impeaches Talbott’s character, it is difficult to understand why it would not also that of this witness, and especially as his testimony shows that he has not entirely reformed all his wild ways. If Talbott is of the very bad character charged, it is strange that after a long residence in Butte, where he has been -engaged in active business, some entirely reputable and unprejudiced witness could- not be' found to say so. Courts cannot hold that the character of a witness is so impeached that his testimony must be disregarded, except upon the testimony of witnesses who are themselves above impeachment, and by such unequivocal testimony from them that it cannot be doubted.”
Why should counsel in the bank suit have attempted to impeach Mr. Talbott? Judge McConnell was called as a witness in this case, and upon his cross-examination was asked by complainant’s counsel several questions touching Talbott’s character;
“Q. Was the question of impeaching Mr. Talbott by reference to his early record a matter of discussion at all between the attorneys? A. Mr. Talbott was discussed between Mr. Clayberg and myself a good deal. * * * I remember his history being discussed in connection with this lawsuit, and that it was developed very much as Mr. Toole has described it in his testimony. His days of gambling were- a considerable period before the time this lawsuit*167 ■was instituted, and took it practically so far back that it might he said to have brought it within the statute of limitations; in other words, that the period of business life had existed, and a number of years had intervened, so that practically that part of his history that contained that had nothing to do with the lawsuit. * * * Q. You do npt mean to say that all good, religious, church members in Montana approve of a man who has been engaged in gambling? A. I do not think any men of that -class approve of gambling. * * * If they had known he kept a gambling house ten or fifteen years before, and had absolutely quit it, I do not think they would condemn him. They would rather applaud him, because he liad quit. I don’t think it would be brought against him. I believe that the Christian law of forgiveness would have been the doctriie that the best people would have adopted with regard to that class of men.”
When asked upon cross-examination whether, from his knowledge of the conditions in Montana, if the fact that a man has been a, gambler would affect his credibility as a witness, he replied: “A. That depends entirely upon what class of a gambler he is.” Assuming, then, that the witness is a man who is engaged in business of a legitimate character, and has been so engaged for years past, and as a business man stands high before the community since he has ceased gambling? “A. A man of that description, and such as Mr. Toole describes Mr. Talbott to have been, could not be discredited in this country before a court or jury, in my judgment, by bringing up his past history for gambling, where he had quit it, and established a business reputation for honesty in business of a number of years’ standing between the period he indulged in gambling and the time lie is sought to be impeached. The truth is, to go hack and take up that kind of a charge against a man of that character would prejudice your case.”
The reasons given by this witness for his opinions were in strict accordance with the views frequently expressed by the courts upon the same or similar subjects.
In Baker v. Com. (Ky.) 50 S. W. 54, 56, the court said:
“We do not understand that the entire past lives of -witnesses are liable to he ransacked and exposed, and the whole history of their lives laid hare. We are of opinion that the period, concerning which the inquiry is made should hear some reasonable relation to the time at which the testimony is given, and that a period of fifteen years is too remote.”
In Greenl. Ev. (15th Ed.) § 459, the author says:
“The examination being governed and kept within bounds by the discretion of the judge, all inquiries into transactions of a remote date will, of course, be suppressed; for the interests of justice do not require that the errors of any man’s life, long since repented of, and forgiven by the community, should be recalled to remembrance, and their memory he perpetuated in judicial documents, at the pleasure of any future litigant.”
See, also, State v. Gesell (Mo. Sup.) 27 S. W. 1101; State v. Parker, 96 Mo. 382, 390, 9 S. W. 728; State v. Houx, 109 Mo. 654, 663, 19 S. W. 35; Whart. Or. Ev. § 472.
Why should we be called upon to answer complainant’s question? The mere fact that a man had in his early life been engaged as a gambler does not of itself establish the fact that he is unworthy of belief. It depends upon the man. There are men who move in good society, and are members of the church, whose reputation in the community where they reside for truth and veracity is had, and whose reputation for honesty and integrity is not good. On the
In State v. Larkin, 11 Nev. 314, 330, the court had under consideration the question whether. the district court had erred in refusing to give the following instruction:
“The jury may, and it is their duty to, take into consideration the chastity or want of chastity of any witness for the state in determining the credibility due such witness.”
In discussing this question, among other things, the court said:
.“This instruction is not confined to- any particular witness. It was, as we think, intended to mislead the jury, and was properly refused. It tells the jury, in effect, that want of chastity is sufficient to destroy the credibility of a witness. As a general proposition, to be. applied indiscriminately to all cases, this is not true. A witness may be unchaste, and yet be truthful. A. witness may be chaste, and yet be untruthful. The law affords ample remedies for testing the credibility of witnesses without introducing testimony of specific acts of-immorality, and in particular instances allows greater latitude than in others, owing to the special facts and circumstances that surround each ifidividual case. There are, perhaps, exceptional cases where it might be proper to show the utter depravity of the moral character of a witness in order to establish the fact that such a witness is not entitled to any credit. But we are not dealing with the exceptions. The general rule, as recognized by a majority of the decided cases, is that evidence of bad character for chastity, where such character is collaterally, not directly, in issue, is not admissible for the purpose of impeaching the credibility of a witness.”
To tbe same effect, see People v. Un Dong, 106 Cal. 83, 88, 39 Pac. 12; Matthews v. Lumber Co. (Minn.) 67 N. W. 1008; Calkins v. Railroad Co. (Mich.) 78 N. W. 129; Rhea v. State, 100 Ala. 119, 122, 14 South. 853; Thrawley v. State, 153 Ind. 375, 381, 55 N. E. 95.
6. The wholesale charges of dishonesty and conduct unbecoming attorneys in accepting fees on both sides is hardly worthy of any reply. Forbis & Forbis and Dixon & Kirkpatrick, of counsel for Andy, are virtually charged with unprofessional conduct, because they accepted fees both from John A. Davis and from Andy. We have set forth in the statement the facts in relation thereto. The* agreement made by. counsel and the additional agreement signed
7. We decline to discuss the motion made by complainant in the court below that she he allowed to amend her complaint so as to include additional charges of bribery and corruption. In the light of all the circumstances disclosed in the record in relation thereto, it is sufficient to state that, in our opinion, the court did not err in refusing the motion.
8. There are numerous other specific points made by complainant, and many pages of testimony in regard thereto, which we deem unnecessary lo discuss. It is enough to say that we have examined each and all of them as carefully as the points we have discussed, and have arrived at the conclusion that upon the whole record, notwithstanding the peculiar and suspicious circumstances contained therein, the appellant has failed to make out a case that would justify this court in granting the relief prayed for. The decree of the circuit court is affirmed, with costs.
ROSS, Circuit Judge, dissents.