70 Iowa 406 | Iowa | 1886
I. Defendant moved the court to exclude certain portions of the evidence of a witness whose testimony
If the circuit court had expressly ruled that this evidence
II. After the cause had been submitted to the court, defendant filed an amendment to his answer for the purpose,
The evidence which tended to. prove the facts from which the agreement to take the note in payment would be implied had been introduced under the issue as it stood before the
III. It is insisted that the ¡judgment is contrary to the evidence. As stated above, the negotiation between the par-
I If plaintiffs had retained the note and guaranty without objection, an acceptance of it on those terms would have been inferred, perhaps, from their silence. But the circuit court was warranted by the evidence in finding that they wrote ;him immediately on receipt of the note, declining to accept It on the terms named in the letter of transmittal, fit can make no difference that this notice did_not reach defendant. When a negoliatibn'df this character is carried on by letter,
The court could well have found from the evidence that they did not so accept it.
AFFIRMED.
I am not prepared to say, as the opinion holds, that, where improper evidence is received by the court, we can presume that the court virtually excluded it by allowing it no weight in its own mind in the determination of the case. It is doubtless the right of every party objecting to evidence to have an express ruling upon its admissibility, for, if a court can refuse to rule, and can allow the evidence weight or not in its own mind, as it sees fit, the party objecting to the evidence might be greatly prejudiced, and have no remedy. If, therefore, the court refuses to rule, as the appellant claims that the court did in this case, I think that its refusal should be deemed error.
But the record does not quite sustain the appellant. The court did not unqualifiedly refuse to rule upon the evidence. It reserved its ruling, and what the appellant excepted to was the action of the court in reserving its ruling. Now, in this alone, I do not see any error. The.question of the materiality of evidence is sometimes one which cannot be determined with certainty until the court has a fuller understanding of the case. "Where this is so, and where the trial is to the court, as in this case, I think that the ruling may properly enough be reserved for a time. The court should in such case afterwards make a ruling, and announce it. But it is possible that it may omit to do so through mere forgetfulness. I think, therefore, that where such ruling is reserved, and the court does not afterwards, upon its own motion, proceed to make the ruling, the party objecting to the evidence should move to exclude it; and if the court overrules the motion, or omits to rule upon it when made, at the proper time, I think that its omission might properly be assigned as
While therefore, I reach the same result as is reached in the opinion of Mr. Justice Reed, I do so upon a somewhat different ground.