120 Minn. 288 | Minn. | 1913
Two actions were brought by plaintiff against Gr. L. Peterson; one being for the recovery of possession of 173 acres of land in Lincoln county, in which case Peterson’s tenant was also a party defendant, and the other to remove a cloud from the title to said land. When the cases were reached for trial, it was arranged to have both •disposed of by the trial of one issue to the jury then impaneled.
The issue then agreed upon as determinative of each case was whether or not the' summons had been served upon E. Lunschen, in an action wherein the defendant Peterson herein was plaintiff and the plaintiff herein was defendant, brought in the district court of said county on March 10, 1910, to recover on a promissory note given by E. Lunschen to the father of defendant Peterson, and transferred
The three main contentions of defendant are: (a) That the verdict is not sustained by the evidence under the law applicable to the-issue here involved; (b) that the court erred in receiving evidence as to. the value of the land; and (c) that the court should have submitted the special verdict requested by defendant to the jury.
The jury was given the correct rule by which to determine the issue litigated. The court, after stating that the sheriff’s certificate was strong prima facie evidence of the fact of service upon Mr. Lunschen, charged that the burden of proof was upon plaintiff to show by clear and satisfactory evidence that no summons was served upon him in the action wherein the judgment was rendered, and that a mere preponderance of the evidence.in his favor was not sufficient. This instruction is conceded to be correct by appellant, and in accord with the rulings of the court in Jensen v. Crevier, 33 Minn. 372, 23 N. W. 541; Allen v. McIntyre, 56 Minn. 351, 57 N. W. 1060; Knutson v. Davies, 51 Minn. 363, 53 N. W. 646, and Vaule v. Miller, 69 Minn. 440, 72 N. W. 452. But the contention is that the evidence, instead of being clear and satisfactory in favor of the verdict, is almost conclusive against it.
On the other hand, we have the fact that on March 8 plaintiff was still in Iowa, because he then executed an appeal bond in a suit there had by his son; the plaintiff’s positive assertion that he was not served, and was not away from Tipton, Iowa, till several days after March 10; the testimony of members of his family corroborating his presence in Iowa; and, more especially, plaintiff’s conduct subsequent to the purported service. In February, 1910, some correspondence passed between the then holder of the note, the father of the present defendant, and this plaintiff; also a letter was written by an attorney in regard to the note. Plaintiff testifies that soon thereafter, whether before or after March 10 is perhaps uncertain, he went up to see Peterson, Senior, about the note. The correspondence was not offered, but enough is shown to indicate that plaintiff did not wilfully let matters go by default, and that he was ignorant of the fact that Peterson, Senior, had transferred the note to the son. This again appears from the fact that after the execution sale plaintiff tried to find defendant’s father, to pay, as he claims, $300 on the note. When he found that Peterson, Senior, had gone out to his farm, he left the money at the bank at Elkton. This
In examining the evidence with a view of determining whether or not the decision finds sufficient support therein, the appellate court ought not to lose sight of the inherent justice of the result reached in the trial court. If the party defeated in the lawsuit has lost no property to which he is morally -entitled, and the prevailing party has obtained no more than he, in justice, ought to have, the appellate court should long hesitate to disturb a verdict, approved by the trial court, on the sole ground that the evidence is not sufficient to support it. Unless we can say upon the record in the instant case that plaintiff and his witnesses are clearly mistaken, or else wilfully falsified, there is ample testimony to sustain the verdict. The credibility of witnesses was for the jury to determine as well as to apply the rule given by the court that, in order for plaintiff to prevail, the testimony of no service of the summons in the suit mentioned must be clear and satisfactory.
Over the objection of defendant, plaintiff was permitted to testify that the farm was worth from $60 to $65 an acre. The defendant earnestly contends that this evidence was irrelevant and immaterial to the issue as to whether the summons in the suit on the promissory note was served or not, and that it strongly tended to prejudice and inflame the jury. It may be doubted that, even if there was technical error in receiving evidence of value, any prejudice in fact resulted to defendant; for it may be safely asserted that any ordinary jury
Even if Lunschen had no defense to the promissory note, so that no inference could be drawn from a failure to answer a summons duly served, it is not the ordinary conduct of men, possessed of valuable property subject to sale upon judgment, such as was shown here, to permit the whole to be irretrievably lost on a small debt. It seems to us that the court did not err in permitting evidence of the true situation, namely, that Lunschen owned valuable property in the county, where it is claimed that he was sued, and that he made no effort to protect this property, although he apparently sought to pay off the debt to the original holder of the note. His conduct, in view of the situation, is persuasive, and, to throw light on his conduct, the location and value of the property which might, by virtue of the litigation, be subject to loss, bears at least indirectly and materially on the issue tried.
On the oral argument the contention was advanced by defendant that the record fails to show that plaintiff suffered any great loss by the execution sale, for the farm may have brought all it was worth. There is no testimony as to the amount for which it was bid in at the sale by defendant, or that it was subject to any incumbrance. In the complaint to remove a cloud, it was alleged that the sale was for $402.70. The demurrer interposed admitted this, but at the trial it was agreed that the answer in the ejectment case, being a general denial, should stand in both. We have, however, the admission that the judgment was for $770.75, and that after the sale there was still a deficiency large enough to apply the whole sum of $300 thereon. The inference is therefore warranted that the sale brought no more than $470.75 and costs.
The last objection urged is that here, where an action at law and a suit in equity were merged for the purpose of trial, and by agreement the sole issue tried was whether or not Lunschen was served with summons in the action wherein the judgment was rendered
The court in clear and unmistakable terms and with legal accuracy, instructed the jury that the only issue for them to try was whether or not there had been a service of the summons in the action of Peterson v. Lunschen, and as to that issue the burden was upon the plaintiff herein to prove by clear and satisfactory evidence that it was not served, in order to render a verdict for possession of the land; otherwise, the verdict must be for defendant. If it was desirable to keep from the jury the effect of their verdict, in order that the same should be based on the unvarnished truth as to the facts, and not be influenced in any degree by that sense of fair play and justice which actuates the ordinary man and juror, we do not think this object could have been any better subserved by the course urged by appellant. We doubt whether any jury can be found dull enough not to understand the legal consequences of an answer to the special finding requested by defendant.
The verdict herein undoubtedly appeals to the innate sense of justice of every one. The only’ debatable question is whether the evidence upon which this result is based, measured by legal standards, is clear and satisfactory. We have, however, concluded that, under the rule governing a court of review, we may not say that the verdict, approved by the trial court, is not sufficiently supported by the evidence.
The order is affirmed.