9 Colo. App. 443 | Colo. Ct. App. | 1897
delivered the opinion of the court.
Appellant was the plaintiff in this suit. In May, 1890, W. J. King and E. S. Yankee, a son of appellee, formed a
There are six assignments of error, all, save one, being to the action of the court in admitting improper, or refusing to admit proper, testimony. The first error assigned is that the court permitted the defendant to testify that he loaned King $5,000 with which to go into the business, and that the same was then unpaid. The gist of the action being the alleged verbal promise of defendant to assume the debts of the firm, and that being denied by defendant, the testimony extended over a wide range. This was, it seems to us, necessarily so from the very nature of the case, and it was not improper to admit proof of any circumstances which would throw any light whatever upon the question and assist the jury in deter
Appellant complains that defendant, whilst testifying as witness in the cause, was permitted to explain why he had said to one of plaintiff’s witnesses, in speaking of the firm, “There will be no more money squandered.” The fact of this remark being made was first brought out by plaintiff in examination of one of its witnesses, and it should not complain that the court permitted the witness to explain why he made the remark and what he meant by it. In any event, we can conceive of no possibilitjr by which the plaintiff was injured or prejudiced by this testimony, especially in view of the answer, in which defendant attempted no explanation of how the money was squandered.
We do not think that the court erred in refusing to permit plaintiff, in its cross-examination of the defendant while on the witness stand, to interrogate him as to why he did not reply to a letter from one J. W. Judd, who testified as a witness on behalf of plaintiff, and who appears to have been an attorney for plaintiff,—it being alleged that Judd had stated in this letter that he (defendant) had agreed to assume the debts of the firm. We think that the contention of defendant is correct in regard to this ruling of the court. It was not proper cross-examination, there being no testimony bro ugh t out in the examination in chief as to any such letter, or as to anything bearing even remotely upon it. Moreover, this was not material nor relevant. The fact the defendant had received such a letter from Mr. Judd, and failed to reply to it, could not have bound defendant in any manner. Judd was not a party to this suit, and not even a creditor of the
The fourth error assigned is to the action of the court in striking out the answer to the second direct interrogatory in the deposition of J. W. Judd. This answer detailed a conversation between the witness and E. S. Yankee as to the business of the firm. Defendant was not present at this conversation, 'and therefore could not have been bound or affected by any statements that were made. The answer was properly stricken out.
The sixth and last assignment of error presents a more serious question. Two of the principal witnesses on behalf of plaintiff were residents of Salt Lake City, and their testimony was taken by deposition. During the trial an attempt was made to impeach them, and two witnesses on the part of defendant, who were also residents of the same city, but who appeared in person, testified that the general reputation of each of them for truth and veracity in the neighborhood where he lived was bad. Defendant moved to set aside the verdict and for a new trial, alleging surprise on this account which ordinary prudence could not have guarded against, and in support thereof presented the affidavits of a number of reputable citizens of Salt Lake to the effect that the general reputation of the witnesses sought to be impeached was good. The motion was denied. Counsel for plaintiff insist with much force and reason that the circumstances of this case were such as to sustain a plea of genuine surprise, and that the motion should have been granted.
The trial was had in the city of Denver, although the controversy was founded upon facts and occurrences which took place in Salt Lake City, in another state, and distant eight hundred miles. It is further urged that the witnesses were not present at the trial, having testified by depositions taken sometime previously, and that, neither at this time, nor at any time prior to the moment of the introduction of the testimony complained of, was any intimation ever given that their credibility would be questioned or attacked; that the
The issues of fact involved in the suit are disclosed in the pleadings. The right to offer impeaching testimony is a legal privilege, which may or may not be, and in fact is seldom, exercised, and the intention of neither party in respect to it is so disclosed. It would be unreasonable to require the parties to always come prepared with a host of witnesses to prove the facts of his case, and also with an additional host to uphold their character for truth and veracity. Such a rule would entail upon litigants a burdensome expense that would amount in some eases to a denial of justice, and that would tend in all to bring into disrepute both the courts and the law. It would be in a last degree inconvenient and mischievous. Wilson v. Clark, 27 Miss. 270.
Before, however, a party in a case of this character can
In this case plaintiff did not, at the time of the introduction of the testimony complained of, nor at any time until after verdict, so far as appears from the record, take any exception or make any objection to it, or offer any remonstrance against it, or manifest any surprise by word or act. If surprised, and the evidence were deemed material, the court might, upon application by plaintiff, have granted a temporary postponement of further proceedings until the plaintiff could prepare to properly meet this unexpected testimony, or it might have allowed a continuance, or plaintiff might have taken a nonsuit. Plaintiff allowed the trial to proceed, however, without seeking any relief from its alleged embarrassment, and did not make its surprise known to the court until after it had taken the chance of a verdict in its favor and failed. The plaintiff waived its surprise by its own neglect, failure or refusal to invoke its proper remedy, and this court will not undertake to interfere with the discretion
The judgment will be affirmed.
Affirmed.