Jameson v. Butler

1 Neb. 115 | Neb. | 1871

•Mason, Ch. J.

This petition alleges several errors on account of which it claims a reversal of the judgment of the District Court.

. ■ I. The affidavit for the continuance of a cause to procure' the evidence of a co-defendant, should state the testimony ■vvhich the affiant expects to be given by the absent party. If it does not do so, it is fatally defective. It is not enough to set forth, in terms however positive, the legal conclusion , which the party may draw from the testimony to be given ; this is for the court,'and not for him to do.

This affidavit does not state any fact which Worthington is.expected to swear to, but only the conclusions of law which the partjr himself draws from facts to be proved; It is not uncommon for parties to mistake the conclusions which should be drawn from facts proved. The motion to continue was rightly overruled.

II. It has been decided by many courts that the refusal of the court to continue a cause, could not be assigned for error, because it is a matter of discretion. — Woods v. Young, 4 Cranch, 237. It is not necessary to decide that question here.

III. The statute is very explicit as to the contents of the certificate of the officer taking depositions. — R. S., p. 458, § 585. When it is complied with, the certificate is sufficient. We cannot add to its requirements. If the statute is not a good one, the remedy is elsewhere. It might be well, as urged by the counsel for the plaintiffs in error, for the certificate to show in terms that the oath was administered in or with reference to the cause. But the statute does not so require. Besides, a long course of decisions in our District Courts has established the sufficiency of certificates, like the one here objected to.

IV. The request in writing, signed by the defendants; addressed to Judge Jameson, ivas in itself, sufficient to justify him in preparing and forwarding his opinion in writing. The defendants requested the plaintiff’s “ deliberate” opinion upon the question, which they state with circumstance and with exactness. It was a grave constitutional question. It was deemed by the plaintiffs one of “ pressing interest,” and demanding “ an immediate examition,” and “a reply, at” the plaintiff’s “earliest convenience.” The form and the terms of the request justified the plaintiff in supposing that he was expected, not only to examine with care the matter in hand, but to reduce his views to writing. A verbal answer, given without reflection, would not have answered the request.

Y. The attempt is made to establish the relation of agency between Sahler and the defendants, and by showing that the agent (ranscended his authority, to relieve the principals of their liability. There is no such relation shown. Sahler’s' connection with the matter was simply that of messenger by whom the defendants sent their com-' munication from Omaha to Chicago. When he delivered the writing containing the request to the plaintiff his business was done. It was the writing, and not he, that asked for the “ deliberate opinion.” It was the request contained in it, and not any words of his, which implied a promise to pay.

VI. The difference between the" request, which the defendants made to the judge for an instruction to the .jury; and the instruction as given is very slight. It is a ■difference in words merely. The instruction as requested was evidently intended to contain the legal proposition which the court charged. As given, it was quite as favorable to the defendants as the one requested. It is not error to decline to give an instruction in the very words in which it is requested, if the substance thereof is given in terms as favorable to the party, as those of his request.

The record discloses no error in the court below. The judgment must be affirmed.

Judgment affirmed.