113 Cal. 286 | Cal. | 1896
This is an appeal from the order of the court denying plaintiff a new trial.
In the opinion of this court rendered upon the appeal from the judgment (Loftus v. Fischer, 106 Cal. 616), the facts are fully set forth, and need not here be repeated.
1. It was not error for the court to refuse a continuance on account of the absence of the witnesses Behlow and O’Gorman. Defendant made the admission as to the evidence of these absent witnesses which is contemplated by section 595 of the Codp of Civil Procedure, and the affidavit containing all that it was proposed to prove by them was admitted in evidence at the trial upon plaintiff’s offer.
3. Of the numerous exceptions taken to the rulings of the court in rejecting or admitting evidence it is sufficient to say, as to most of them, that the rulings were correct or that the subjects of inquiry were immaterial and collateral matters. The rulings, even if technically erroneous, could not have injured appellant. The complaint contained a mass of averments redundant and superfluous to the cause of action stated. Under these unnecessary averments a vast amount of evidence was introduced which was entirely immaterial to the legitimate issues of the case._ The court gave the widest latitude to counsel upon either side, both in their direct and cross-examinations. All of the business affairs of the corporation—or partnership—whether bearing upon the transaction in dispute or not, were gone into and discussed with tiresome iteration. That a little more or less evidence was admitted or excluded cannot have worked injury when the evidence itself was upon questions collateral to matters collateral to issues immaterial. But, touching specifically upon one or two of the many rulings complained of, it was not error for the court to refuse admission in evidence to all of the complaint in the case of Behlow v. Fischer. This complaint had been verified by plaintiff. Upon cross-examination, and while being interrogated as to the value of the stock of the corporation at a certain time, a paragraph in this complaint which contained an allegation of its value was offered and admitted in evidence. Witness was allowed to and did explain fully what he meant by this averment, and all about the value of the stock. Upon redirect examination plaintiff’s counsel offered all of that complaint “to explain the portion admitted.’’
4. Of the findings which it is claimed are erroneous each and all are fully supported by the evidence of defendant, which in many instances is corroborated by that of other witnesses. It is true that the evidence presents a conflict upon many of the questions, but the trial court’s determination of the facts, under such circumstances, will not be disturbed.
The order appealed from is affirmed.
Appellant has moved that the costs of obtaining the clerk’s certification to the transcript, amounting to one hundred and twenty-six dollars, be taxed against respondent under rule XI of this court for the failure and refusal of respondent’s counsel to certify to the correctness of the transcript within five days after its presentation to them for that purpose.
The code provides the mode by which the appellant shall bring his appeal to this court, and, as one of the steps in the process, that the clerk shall certify to the correctness of the contents of the transcript. In this case it appears that the law values the services of the clerk so rendered in the sum of one hundred and
The motion to allow the costs of certification is therefore denied.
Temple, J., and McFarland, J., concurred. ,