Martin v. Duncan Automobile Co.

296 P. 24 | Nev. | 1931

The court erred in overruling interveners' objections to the plaintiff giving opinion evidence as to what was a reasonable attorney's fee to be allowed plaintiff on the foreclosure as to the Stuart car, when there was not the slightest attempt made to even seemingly qualify him by showing he was to any extent familiar with attorneys' charges or that he knew anything whatever about the amount or character of the legal work, etc., performed by his attorney. 6 C.J. 763 and note; Hart v. Vidol, 6 Cal. 56; Howell v. Smith (Mich.), 66 N.W. 218; Frye v. Estes, 52 Mo. App. 1; Central, etc. Railway Co. v. Goelzer (Ark.), 123 S.W. 781; Rogers Exp. Test, pp. 380, 381; Chamberlayne on Evidence, sec. 2163; State ex rel. Bank v. Flarsheim (Mo.), 119 S.W. 17; Jones Com. on Ev., sec. 287, vol. 2, p. 960; 2 Enc. of Ev., p. 169; Mock v. Kelly, 3 Ala. 387; Kappler v. Storm (Okla.), 153 P. 1142, 1143; Coca Cola Co. v. Moore (C.C.A. 8th), 256 Fed. 640 (syll.); Fast v. Austin (Md.),107 A. 540.

Section 5472, Rev. Laws, was enacted, we believe, to get away from the unsatisfactory rule laid down in the case of Gerhauser v. North British, etc. Co., 7 Nev. 178, 188, 189, 190, and to modernize and bring the Nevada rule into harmony with what is undoubtedly the general and strong majority rule. Emerson v. Burnett et al. (Colo.), 52 P. 752-754. The rule as to deceased witnesses is equally applicable to witnesses who are outside the jurisdiction of the court and out of the reach of its process. 1 Greenl. Ev. sec. 163; Gilmore v. Butts (Kan.), 59 P. 645; Atchison, etc. Ry. Co. v. Osborn, 91 A.S.R., note at p. 195.

The mere absence of the witness is sufficient, and no showing need be made of diligence to procure his deposition or personal attendance. Minneapolis Co. v. Railway Co. (Minn.),53 N.W. 639-642; McGovern v. Smith (Vt.), 53 A. 326; Giberson v. Mills Co. (Pa.), 41 A. 525; Reese v. Morgan Mining Co. (Utah),54 P. 759; Reid v. Uhr. (N. Dak.), 174 N.W. 71, 6 A.L.R. 586-588; Schwalbe v. Postle (Colo.), 249 P. 495, 496; Toledo, ext. Co. v. Cameron (C.C.A. 6th), 127 Fed. 48-57.

The absence of the witness need not be of a permanent character. Inspiration, etc. Copper Co. v. Bryan (Ariz.),252 P. 1012-1015; 2 Wigmore, sec. 1404.

The statute, Rev. Laws, sec. 5472, was intended to cover any and all proceedings in the same cause. In Re Colberts Estate (Mont.), 153 P. 1022-1024; Keating v. Keating (Cal.), 147 P. 974,975; Tregambo v. Comanche Mining Co., 57 Cal. 501, 504, 505; Redington v. Cornwell (Cal.), 27 P. 40-43; McPike v. McPike, 10 Ill. App.? 332; Joseph v. Schnepper (Ind.), 27 N.E. 305; Watts v. Billings, etc. Co. (Mont.), 253 P. 260-263; Finn v. Spagnoli (Cal.), 7 P. 746; Goldtree v. Spreckels (Cal.), 67 P. 1091, 1092. It is our contention that whatever error may have crept into the record in the testimony of plaintiff upon the question of attorney's fee, that error, if such existed, was not prejudicial or reversible error, and was at the same time cured by the introduction, without objection, of the testimony of Mr. Jepson, who was admittedly a competent witness upon the question of attorney's fees. McCormick v. Roberts, 13 P. at p. 828; Jones v. Tallant, 27 P. at 306; 13 Cyc. pp. 1430, 1423.

The offer of the former testimony by intervener L.F. Weaver Company does not come within the purview of the statute, since the L.F. Weaver Company was not a party to the record at the time of the taking of said former testimony. The statute specifically provides that "either party to the record may read in evidence the testimony of said witness." Marshall v. Hancock, 22 P. 62; Patty v. Salem Flouring Co., 96 P. at p. 1108; Madden v. Stegman, 127 P. at p. 525.

The intervention of L.F. Weaver Company not only prevented identity of parties, but also introduced new issues into the case, so that at the subsequent hearing or trial the issues were entirely different from those presented at the former hearing upon the motion for the appointment of a receiver.

As to intervener Stuart, the whole case is a moot question, since he has no further interest in the action or its subject matter, in that he forfeited all of his right, title and interest in and to the automobile represented by the sum of one thousand dollars now held by the receiver, and since this lack of interest on the part of intervener Stuart existed at the time of the trial herein.

In construing a statute such as ours, we must view it in the light of existing rules of procedure and legislative intent. We find the rule in this jurisdiction to be well set forth in the case of Gerhauser v. North British and Mercantile Insurance Co.,7 Nev. 174, at 188. This case fully supports our contention that a deposition must be taken if it is at all possible. We do not believe that our present statute in any way attempts to repeal or modify the common law rule as expressed in the Gerhauser Case. It is merely a declaration of what was the majority rule at common law, and as such carries with it all of the rules of evidence which were applicable under the common law rule. Reynolds v. Fitzpatrick, 72 P. at p. 511; Kennedy v. Canadian Pacific Ry. Co. (Wash.), 151 P. 252.

OPINION This suit was instituted by Eli L. Martin, as plaintiff, against Duncan Automobile Company, as defendant, to foreclose chattel mortgages upon four automobiles. In due time Charles G. Stuart intervened, alleging that he had purchased the car in controversy upon this appeal, from the defendant, who was the regular agent at Reno, Nevada, for the make of car in question, and paid in cash $1,000, the balance payable in monthly installments. Later the L.F. Weaver Comany also intervened.

Pending the hearing of the case upon its merits, an application for the appointment of a receiver to take possession of the cars was made, and upon the conclusion thereof the court appointed such receiver, from which order an appeal was taken to this court. Martin v. Duncan Automobile Co., 50 Nev. 91,252 P. 322.

Thereafter the case came on for trial upon the merits — upon the question of the foreclosure of the chattel mortgages — and it is from the judgment rendered ordering a foreclosure and the order denying a motion for a new trial that this appeal is taken.

Only two questions are now urged. One is as to the correctness of the ruling of the court in rejecting the testimony of intervener Stuart which was given upon the hearing of the application for the appointment of a receiver.

Section 5472, Rev. Laws, section 9019, N.C.L., reads:

"Whenever in any court of record the testimony of any witness in any case shall be stenographically reported by an official court stenographer, and thereafter said witness shall die, or be beyond the jurisdiction of the court in which the cause is pending, either party to the record may read in evidence the testimony of said witness, when duly certified by the stenographer, to be correct, in any subsequent trial of, or proceeding had, in the same cause, subject only to the same objection that might be made if said witness were upon the stand and testifying in open court."

It will be seen that testimony taken in any case and stenographically reported, when duly certified by the stenographer to be correct, may be introduced in evidence in any subsequent trial, or proceeding, in the same cause, upon the existence of one of two conditions, viz: (1) That the witness who gave the testimony is dead, or (2) is beyond the jurisdiction of the court in which the cause is pending.

It was shown upon the trial that Stuart and his wife were in Arizona at the time of the trial. The parties who are interested in this proceeding participated in the former one.

Counsel for the plaintiff contends that this case is controlled by the opinion in Gerhauser v. North British Merc. Ins. Co., 7 Nev. 174-188, wherein it was held that the rule applicable to the testimony of a dead witness did not apply to one who is beyond the jurisdiction of the court. 1, 2. The section which we have quoted was enacted subsequent to the decision of the case mentioned, and it must be presumed that it was enacted to meet the situation which was presented in that case and the ruling of the court therein. The statute quoted should be construed in accordance with the views expressed in Escalle v. Mark, 43 Nev. 172, 183 P. 387, 5 A.L.R. 1512, to the effect that it was the purpose of the legislature to remedy the objection theretofore existing. This was clearly the purpose of the section in question. It is broad in its scope and should be liberally construed to effectuate its purpose.

The learned trial judge, in passing upon the objection, said:

"The evidence would be sufficient to show that they (two witnesses) are without the jurisdiction of the court, but unless we take the telegrams of the parties the evidence would not be sufficient to show that their absence from the jurisdiction is permanent."

3. The court having found that the evidence showed that the witnesses were without the jurisdiction of the court, which is amply supported by the evidence, nothing more was necessary to entitle the defendant to have the evidence admitted. The condition of the statute is not that such witnesses be permanently beyond the jurisdiction.

4. The section provides that such evidence may be admitted in any subsequent trial or proceeding. The word "proceeding" is comprehensive. It is comprehensive when used alone, but when it follows the word "trial" as in the section quoted, it is clear it was intended to include practically every inquiry which might invoke the attention of the court.

This court quotes approvingly in Sherman v. Southern Pac. Co.,31 Nev. 285, 102 P. 257, 258, as follows:

"In Irwin v. Bank of Bellefontaine, 6 Ohio St. 86, it is said: `The word (proceeding) is generally applicable to any step taken by a suitor to obtain the interposition or action of a court.' In Wilson v. Allen, 3 How. Prac. (N.Y.) 371, the court said: `The term "proceeding" is generally applicable to any step taken by a party in the progress of a civil action. Anything done from the commencement to the termination is a proceeding.' Stonesifer v. Kilburn, 94 Cal. 42,29 P. 335."

5. We think the testimony should have been admitted for what it is worth.

6. We come now to a consideration of the ruling of the court in admitting the testimony of a layman as to the value of legal services, over the objection of counsel for the defendant. The court erred in admitting the testimony in question.

"The opinion of one who is not an attorney is incompetent to prove the value of any attorney's services." Rogers Expert Testimony, pp. 380, 381. See, also, 6 C.J. 763 and note; Hart v. Vidal, 6 Cal. 56; Howell v. Smith, 108 Mich. 350, 66 N.W. 218; Fry v. Estes, 52 Mo. App. 1; Central, etc. Ry. Co. v. Goelzer,92 Ark. 569, 123 S.W. 781; Chamberlayne on Ev., sec. 2163; 2 Jones Com. on Ev., sec. 287, p. 960; 2 Ency. of Ev. p. 169; Mock v. Kelly, 3 Ala. 387.

Judgment and order reversed.