85 P. 494 | Idaho | 1906
Lead Opinion
(After stating the facts.) — The first four assignments of error go to rulings of the court in settling the issues in the case. These were matters addressed to the discretion of the trial court, and we find no abuse of that discretion in this ease. The fifth and sixth assignments are predicated on the denial of motions by plaintiff to have default entered against defendant. While the defendant was, as a matter of fact, in default, in the strict sense, it was within the power and discretion of the court to extend and enlarge the time for answering, and no injury appears to have resulted from such action.
The seventh assignment is that the court erred in sustaining defendant’s objection to the admission of the evidence of J. F. Bonham. The witness was called, and, after being sworn, testified that he had resided at Rigby, and was acquainted with Later Bros., and also with the defendant; that he had talked with Mrs. Haywood in relation to the matter at issue about one year prior to the trial of the ease. It was shown by the witness that he had never been admitted as an attorney in any court, and that he did not hold himself out as such, but that, on the other hand, he was a conveyancer and kind of general counselor and adviser of the people in the village of Rigby. He advised his neighbors and friends concerning business and legal transactions which arose among them. It does not appear that he had ever been employed by defendant as a legal
The last assignment is made against the action of the court in granting a nonsuit. This action was taken under subdivision 5 of section 4354 of the Revised Statutes. A careful perusal of the record convinces us that the evidence produced by the plaintiffs was sufficient to put the defendant to her proof. The evidence, at least, tended to prove all the material allegations of the complaint. The rule requiring the evidence in such cases as the one at bar to be clear and convincing applies only to the determination of the case on the evidence after both sides have submitted their proofs, and has no application to a case where the defendant, resting on plaintiffs’ proof alone, moves for nonsuit. By such a motion the defendant admits the existence of every fact which the evidence tends to prove, or which can be gathered from any reasonable view of the evidence. (Great Northern R. R. Co. v. McLaughlin, 70 Fed. 673, 17 C. C. A. 330; Cane v. Gold Mountain Min. Co., 27 Mont. 529, 71 Pac. 1004; Railroad Co. v. Everett, 152 U. S. 107, 38 L. ed. 373, 14 Sup. Ct. Rep. 474; Cravens v. Dewey, 13 Cal. 40; McKee v. Greene, 31 Cal. 418; Fenton v. Millard, 81 Cal. 540, 21 Pac. 533, 22 Pac. 750; Lewis v. Lewis, 3 Idaho, 645, 33 Pac. 38; Edmisson v. Drumm-Flato Commission Co., 13 Okla. 440, 73 Pac. 958; 6 Ency. of Pl. & Pr. 441.) It is also contended that there was a fatal variance between the allegations of the complaint and the proof submitted: Respondent argues that the evidence shows that whatever claim or cause of action has been disclosed belongs to the Rigby Hardware, Lumber and Manufacturing Company, a corporation, and not to the plaintiffs. This contention rests on the fact that the Later Bros, were the incorporators of the new company, and that the corporation' appears to have succeeded to all the property and rights of the Later Bros. It also appears that the copartnership known as Later Bros, was dissolved sometime prior to the commencement of this action. It was shown, however, that the accounts were turned over to the corporation only conditionally, and that such as might
The judgment must be reversed, and it is so ordered, and the cause-is remanded for a new trial. Costs awarded to appellants.
Dissenting Opinion
Dissenting.- — -I cannot concur in the conclusion reached by my associates, for the reason that I do not believe the plaintiffs are entitled to any relief. Before a plaintiff can recover in a civil action of this character, he must show he is the real party in interest. In this ease Later Bros, plead they are entitled to the relief prayed for, and if they prove anyone is entitled to an equity in the property in controversy, it is the Rigby Hardware, Lumber and Manufacturing Company. The proof shows that Later Bros, and others organized a corporation called the Rigby Hardware, Lumber and Manufacturing Company; that corporation took over all the assets of Later Bros. Later Bros, ceased to exist as a copartnership after the incorporation of the Rigby Hardware, Lumber and Manufacturing Company, and the equity, if any, in the property in controversy, passed to the .Rigby Hardware, Lumber and Manufacturing Company as one of the assets of Later Bros.; the corporation is still in existence. We find a letter in the record that throws much light on the question before us.
*85 “Rigby, Idaho, June 21, 1904.
“Mrs. Martha Haywood, Rigby, Idaho.
“Dear Madam: Your proposition made to us through Richard Later to pay us $140 in full for our claim against the property you hold as security for loan, being lots 5 and 6, block 2, town of Rigby, has been considered by the directors of our company and refused. We feel that this company has been as generous with you in this matter as any sane person could wish. We wish to avoid trouble and foreclosure proceedings, but in this matter you certainly cannot object to the ultimate result of such procedure. The members of our company insist on immediate action being brought to recover the amount due us, with interest, and have instructed the undersigned to notify you that unless you pay to this company before the morning train leaves for St. Anthony Friday, the 23rd inst. the sum of $150.00 (being the proposition made to you on the 18th inst.) the said proposition will be off, and we shall go to the county seat and institute foreclosure proceedings. This proposition is final and do not expect further overtures from us, for none will be made.
“Most respectfully yours,
“THE RIGBY HARDWARE, LUMBER & MANUFACTURING COMPANY,
“Per George Hill, Jr.,
' “Secretary and Treasurer.”
This letter would indicate that the business officer of this corporation believed the Rigby Hardware, Lumber and Manufacturing Company had some kind of a claim against respondent. There is no dispute about the claim referred to being the same one upon which this action is predicated. The record fails to disclose any transfer of this claim from the Rigby Hardware, Lumber and Manufacturing Company to Later Bros, after the time this letter was written and the commencement of this action. The motion for nonsuit was sustained on the ground of fatal variance between the pleadings and proofs and other grounds. I do not think there was any error in the ruling of the court in sustaining this motion, at least
Rehearing
ON PETITION FOR REHEARING.
This is a petition for rehearing. The petitioner suggests that the majority of the court have treated the petitioner’s motion for nonsuit as made solely upon the ground of failure of proof and not as a motion made upon the ground of fatal variance between the allegations and the proof. In that, counsel for petitioner is mistaken. It is admitted by counsel that the motion for nonsuit involved two questions: (1) Whether the defendant had been actually misled to her prejudice in maintaining her defense upon the merits because of the variance between the allegations and the proof; and (2) Were the appellants the real parties in interest? While the first point is only inferentially decided by the opinion, the court considered that matter and concluded that the variance between the allegations and proof did not mislead the appellant. Section 4225, Revised Statutes of 1887, provides that whenever it appears that the party has been so misled, the court may order the pleadings to be amended upon such terms as may be just; but it is clear to us that the variance complained of did not mislead the adverse party, and for that reason the. court followed the provisions of section 4231, Revised Statutes of 1887, which provides that the court must in every stage of an action disregard any error or defect in the pleadings or proceedings, which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect.
A rehearing is denied.