189 Iowa 336 | Iowa | 1920
I. There are 92 “errors relied on for reversal,” and 61 brief points. The two fill 56 pages of print.
IV. There is a complaint asserting that the court erroneously struck out Paragraphs 5, 6, 8, and 10 of the answer of defendant. Paragraph 5 asserts the statute of frauds, and its striking off has been disposed of. Paragraphs 6, 8, and 10 were not stricken at all.
IX. The opening statement of counsel for appellee is complained of on the ground that it was an argument on the merits. We have examined the argument set out in the abstract with care, and see nothing in it-that makes the permitting it an abuse of discretion. Nor do we feel at liberty to interfere with the discretion the court had, by holding that, as matter of law, the argument went beyond a reasonable and fair statement of what counsel construed that evidence to be which he expected to adduce. In so far as it can be claimed statements made in this opening argument were mere conclusions, there is nothing to consider here, because, as to these, the court sustained objections.
Moreover, it is settled in this jurisdiction that, where there is a reversal on other grounds, the question of misconduct of counsel is a moot one. Davis v. Hansen, 187 Iowa 583.
As to the evidence received on what ivas customary schooling, appellant urges that it should not have been received, because there was no showing as to the surroundings of the parties, nor as to the education or social standing of C. B. Kirchner, throwing light on what he meant by education, if he ever used such a term. No matter what he may have meant by the term, it was still competent to show what it would reasonably cost to educate these children.
XIII. Barney Kirchner was asked this question :
“You may state whether or not, on Sunday afternoon, prior to the death of your daughter, in February, 1910, you*344 had a talk with hex* in which she told you — ”
The argument assumes that the ruling, excluded a declaration by the decedent, and that such declarations were competent to rebut the claim of the plaintiff. There was no profert, and we do not feel warranted to assume what appellant does.
XIV. Appellant concedes the record does not show decedent knew the children were at Cedar Rapids, but urges that appellee claims the reason that decedent wanted her to take the ehildrexi was that they should be kept together where he could visit them. Upon this, it is assigned as error that the court excluded testimony that decedent never visited the children at Cedar Rapids. We would not reverse on the point, but sxxggest that such testimony might well be admitted.
True, we have held that the interest which disqualifies the witness must be legal, certain, and immediate (Birge v. Rhinehart, 36 Iowa 369) ; and that the witness must be interested in the sense that he will either gain or lose by the direct, legal operation and effect of the judgment, or in the sense that the record will be legal evidence for or
XVIII. Possibly appellants are raising the question whether there is not a total failure to prove acceptance. Assuming that the point is properly before us, we prefer not to determine it on this appeal. Having held there is no competent evidence of a contract, we should not now determine finally whether there is no proof of acceptance. It will be time enough to say whether a jury could find that there was no contract because there was no acceptance, when we have competent evidence in the record to show that a contract was even proposed.
XIX. We stop here, because other complaints presenting alleged errors have been made harmless by our final decision, and because other matters are not likely to occur on retrial.
For the matters disposed of in Division XVII and XVIII of this opinion, the cause is — Reversed a!nd remanded.