100 N.W. 703 | N.D. | 1904
This is an action for a balance claimed to be due the plaintiff from the defendant on account of money collected for the plaintiff by the defendant as his agent. The answer pleads full payment. A verdict was rendered for the full amount claimed by plaintiff. Defendant made a motion for a new trial on the following grounds: (1) Alleged errors of law relating to the admission and exclusion of evidence; (2) on the ground that one of defendant’s witnesses unexpectedly failed to appear at the trial because of his sickness; (3) upon the ground that defendant was compelled to proceed to trial without the assistance of his attorney of record in the case, for the reason that plaintiff’s attorney had failed to notify said defendant’s attorney when the case would be called, as he had agreed to do; and (4) insufficiency of the evidence to sustain the verdict. The motion for a new trial, based on a settled statement of the case, was denied, and judgment rendered on the verdict. The defendant appeals to this court from the judgment.
The cause of action set forth in the complaint was based upon the following facts: The plaintiff is a stepson of one Christian S. Bakkman. Bakkman and -plaintiff were not on very friendly terms. There was a -controversy between them in regard to certain money hel-d- by Bakkman which plaintiff had inherited from his father. Plaintiff was anxious to 'have this money paid to him by Bakkman, and -claims that he employed the defendant, Sigfusson, as his
Appellant urges that his rights were prejudiced by the conduct of plaintiff’s attorney in failing to notify defendant’s attorney of the time when the case would be reached for trial in time for him to be present at the trial, as he agreed to do, as claimed by defendant. What the plaintiff’s attorney did agree to do concerning such notification is a matter of dispute. The attorneys do not agree as to the facts, and, as they rest in parol, this court will not attempt to determine what the facts are. The matters in controversy transpired mostly in the presence of the trial court. That court, under its own knowledge of the facts, and with the affidavits of the parties before it relating to the disputed facts, denied the motion for a new trial, and thereby decided the disputed questions of fact adversely to appellant’s contention. Under the circumstances, we shall be controlled by the finding of the trial judge on this matter. We will say, however, that the case, when called for trial, was the last jury case on the calendar; that -there was no formal motion for a .continuance on the ground that defendant’s counsel was absent and had not 'been notified by -plaintiff’s counsel; that Mr. Bosard was employed by defendant to try the case when it became known that Mr. Skulason, his attorney of record, could not be present for immediate trial. After a jury was impanelled, Mr. Bosard suggested that further proceedings ought to be postponed until the next day, on account of Mr. Skulason’s absence; giving as his reason that the witnesses would testify through an interpreter in a foreign language, not familiar to him, but familiar to Mr. Skulason. The examination of two witnesses proceeded so far as their direct examination was concerned. -On request of Mr. Bosard, their cross-examin
The defendant claims that a new trial should have been granted on the ground of the unexpected absence of a material witness who suddenly became ill and was unable to attend. The witness was not subpenaed, but promised on the day of trial that he would attend as defendant’s witness. He now makes affidavit that he would have attended as such witness, had-sickness not come on. The defendant knew that he was sick before the trial was resumed on the second day, and made no motion for a continuance. It is claimed that the circumstances present a case of “accident and surprise which
The appellant ass'igns as error that his objections to questions put by plaintiff to his witnesses as leading were erroneously overruled, and that plaintiff’s objections to defendant’s questions to plaintiff’s witnesses on cross-examination were erroneously sustained. These objections relate to several questions. We have carefully considered such objections. . No useful purpose would follow repeating the questions here. In no case does it appear that a leading question objected to was followed by an answer containing evidence of facts that were not substantially in evidence before. One question will illustrate the manner in which the leading questions were asked, as follows: “This money was then paid to Sigfusson to be paid to the plaintiff in this case?” The witness had previously testified that he had paid the- money to Sigfusson, and requested him to pay it to the plaintiff, and such answer was elicited by questions not leading. The question objected to was objectionable, but to allow it was not reversible error. The witnesses were examined through an interpreter, and the trial judge had a wide latitude of discretion, which was not exercised in a manner prejudicial to defendant’s rights, nor in a manner not allowed under the ordinary rules relating to examination of witnesses. White v. White, 82 Cal. 427, 23 Pac. 276, 7 L. R. A. 799; Funk v. Babbitt, 156 Ill. 408, 41 N. E. 166; Kohler v. Ry. Co., 99 Wis. 33, 74 N. W. 568; State v. Chee Gong, 17 Or. 635, 21 Pac. 882; Blakeman v. Blakeman, 31 Minn. 396, 18 N. W. 103; Rainey v. Potter, 120 Fed. 651, 57 C. C. A. 113; Carlson v. Holm (Neb.) 95 N. W. 1125; Pittsburg Ry. Co. v. Kinnare (Ill.) 67 N. E. 826.
The objection that the defendant’s attorney was restricted in his cross-examination did not result in excluding any fact concerning which cross-examination was attempted. The facts concerning which the inquiry was made had been testified to. Under the wide latitude allowed on cross-examination the rulings were perhaps too resricted, but to grant a new trial for this reason would be unwarranted, as there is no pretense or claim that a material fact was excluded that was not already in evidence.
The judgment of the district court is affirmed.