McManus v. Finan

| Iowa | Jul 1, 1856

Woodward, J.

The first error assigned relates to the admission of the witness, after the defendant had closed his argument. Section 1778 of the Code was designed to prevent the unjust determination of a cause; on account of an ■ accidental or inadvertent omission of a party to call a witness, or to ask a question, to some point. It was not intended to be limited in its application to the period of examining witnesses. Eor this, a statutory provision would not have been' thought requisite. The law deems it just that the evidence should be heard, and does not favor that which is denominated “ sharp practice.” But the privilege is not to be abused. It is within the discretion and control of the court, as are also the terms to be imposed, if any are deemed just. There is nothing to show that the discretion of the court was improperly exercised in the present instance.

The defendant was allowed to introduce testimony in rebuttal, and to present further considerations to the jury on the new evidence offered.

The assignment of error numbered four, relates to the instruction, that the question whether the fence was a lawful fence, and a good one, was in the discretion of the jury. The court repeatedly refers to the statute definition of a. sufficient fence. Acts of 1852-3, 174, chap. 105. And as that prescribes the height, in feet and inches, we will not. suppose the word discretion refers, in any sense, to that. It is true, that the more ordinary use of this word, with us, implies something more of mere choice than would be consistent with the present application of it. But in its more proper sense, it implies judgment — soundness of judgment. Thus, we speak of a discreet man, and of his discretion; and in this sense, the word applies well enough to those qualities of a fence which are in their nature undefined, as when the statute describes it as “of strong materials, put up in a good and substantial manner, with sufficiently small spaces,” &c. These things were within their discretion or sound judgment, not in their mere option. The court quite clearly directs the jury that the fence must be one answering to the sense of the law; and if the instruction might be construed as requiring anything more than this — such as that it should be such a fence as the custom of the country called for — this was matter for the plaintiff to complain of, and not the defendant.

To the instruction embraced in the fifth assignment of error, there can be no possible objection.

Of the remaining matters, some present that difficulty of adjudication which arises from vagueness and want of point in the objections. Thus, the second error assigned is, on refusing the- first instruction asked by the defendant. The court had before instructed the jury that it was important for them to inquire whether the defendant’s cattle did the damage complained of; and besides, this is the very gist of the action, and of which the jury is to inquire. Therefore, the court may, perhaps well enough, have declined to give it, because it "was already involved and given. But if the defendant insists upon the instruction, notwithstanding what was already before the jury, then we are obliged to say that it is not true — it is not accurate. Suppose the jury do find that the defendant’s cattle did do all the damage, in fact, although other persons’ cattle trespassed there, may they not find such a fact? It is possible that other cattle may have entered the close, and not have destroyed the crops. The instruction asked is not one which will warrant a reversal.

As to the third error assigned — the refusal of the second instruction asked by the defendant — the mind is led to doubt whether it understands this instruction. Of course, the jury must find that the defendant’s cattle committed the trespass; before they can find for the plaintiff; and upon this alone they would find, at least, nominal damages. It is not perceived to what this aims, since the jury have -found damages to the amount of one hundred and fifty dollars, done by the defendant’s cattle, and not by those of other persons. They might find against the defendant, and then disagree as to the amount; or they might find nominal damages. But it is not correct that they must find the amount, before they can find for the plaintiff. It is true that they could not return a verdict into court without finding the amount; or, at least, if they return a verdict for the plaintiff as for a trespass, and could not agree on the damages, such a verdict would carry nominal damages. "We conceive that the instruction asked is not correct, if we can imagine any proper meaning for it.

. The motion for a new trial is based upon an affidavit of what the defendant is informed and believes he can prove by certain persons. This does not yield sufficient certainty of his being able to prove the facts, if he had the witnesses. ■But further, if the facts were proved, they would not necessarily change the verdict. And yet more, perhaps they would not even authorize a change. But further, the affidavit rather shows a neglect, a want of preparation of his cause, on the part of the defendant. He says he was surprised by the evidence of the plaintiff, whilst that evidence was on the very gist of the cause, as it was to be proved by the plaintiff.

There does not appear to be any error in the rulings of the court below, and the judgment is affirmed.