2 Indian Terr. 144 | Ct. App. Ind. Terr. | 1899
The appellants, in the arrangement of their brief, have not clearly apprehended, or have failed to fully comply with, the requirements of rule 10 of this court. The portion of the rule not complied with is as follows : ‘ ‘2. This brief shall contain, in order here stated. (1) A concise abstract, or statement of the case, presenting succinctly the questions involved, in the manner in which they are raised. (2) A specification of the errors relied upon, in law cases, shall set out separately and particularly each error asserted and intended to be urged. * * * When the error alleged is to the charge of the court, the specification shall set out the part referred to, totidem ver-bis, whether it be in instructions given or in instructions refused. ” ‘ ‘It is generally said that the assignment of errors in the appellate court is just as essential as the declaration or complaint in the lower court. • It is jurisdictional, and cannot be dispensed with by agreement of the parties. * * =i= The failure to file an assignment of errors must consequently entail an affirmance of the judgment or decree or a dismissal of the appeal. ” 2 Enc. Pl. & Prac. pp 922-924. Bui the “appellants earnestly contend that the first instruction given by the court, ” which is copied, ‘ ‘tended to mislead the jury” (page 3, appellants’ brief); and further on, on page 5, they “further complain and contend that the court erred in giving the instruction designated as No. 2,” which is not copied. On page 8 they “further contend that the court erred by giving instruction No. 4, ” which is copied; and on page 9 they “insist that the court erred in giving the following instruction,” and then copy part of an instruction given by the court to the jury, instructing them that they are the sole judges of the credibility of the witnesses, etc.; and on page 13 they ‘ ‘contend that the court erred in refusing to give the following instructions, asked
The appellants have cited numerous authorities to the effect that the following quotation from Jones on Chattel Mortgages is good law: “Any mortgage interposes an obstacle in the way of the legal remedies of other creditors, and may to that extent be said to hinder and delay them; but this fact is not of itself sufficient to render the mortgage void, in the absence of an intent to so hinder and delay the mortgagor’s creditors. Moreover, a mortgage is not invalidated by the further fact that the creditor knows, when he takes a mortgage, that his debtor is in failing circumstances, and that the intended effect of giving the security will be to
But Mr. Jones says further, in section 356: “If a mortgage is given by an insolvent debtor, not to protect and prefer an honest creditor, but rather to aid and assist the debtor in defeating other creditors by covering up his property, it will be held fraudulent. ” In Shelley vs Boothe, 73
The first and second errors assigned are to the charge of the court, designated as “No. 1” and “No. 2,” which are as follows: No. 1: “The court further instructs the jury that a debtor has a right to secure his creditors by mortgage, and, although the ultimate effect of this may be to delay other creditors, such mortgage will be valid, if made in good faith, solely for security; but a mortgage which is executed, not alone to secure an honest indebtedness to mortgagees, but also to protect the property of the mortgagor, and to cheat, hinder, or delay his creditors, if this fact is known at the time mortgagees participated therein, is fraudulent as to other creditors and void; and if you so believe, from the" evidence in this case, you will find for the plaintiffs and against the interpleaders.” No. 2: “If you find, from the evidence in the case, that the mortgagor, W. V. Carey, fraudulently intended, by the giving of the mortgages to Noyes, Norman & Co., Mack Stadler & Co., Henry Baden, Swofford Bros. Dry Goods Co., and Robert R. Croam, to cheat, hinder, or delay his creditors, the court instructs you that knowledge or notice of such fraudulent intent on the part of C. E. Brown, agent for interpleaders herein, was notice to said interpleaders in this case; and it was not necessary that said interpleaders had actual knowledge of such fraudulent intent on the part of said mortgag- or, W. V. Carey. ”
The appellant contended that the first instruction of the court “does not state the rule of the law correctly, as applicable to such cases as the one at bar, and that by the wording and provisions of the instruction it is made ambiguous, and a clear understanding of just what rule the court attempted to lay down is impossible to ascertain and determine.” We cannot see any serious objection to this instruct
The appellants are unfortunate in citing the case of Bank vs Ridenour, 46 Kan. 707, 27 Pac. 150, in support of the error assigned in giving the second instruction. In the Kansas case, the firm of Lovejoy & Glasscock made a mortgage to C. J. Lovejoy, one of the members of the firm, to secure a bona fide indebtedness to the bank. The case was tried to the court without a jury, and the court, in its findings of facts, found that said G. J. Lovejoy was a member of the firm of Lovejoy & Glasscock, and liable for all the debts of the firm, and that said mortgage was given to hinder, delay, and defraud the creditors of Lovejoy & Glass-cock, which said intent was known to and participated in by the defendants, G. J. Lovejoy, H. 0. Lovejoy, and A. C. Glasscock, but the bank had no knowledge or notice of such intent, and did not participate therein. The court below held the mortgage void, but the supreme court reversed the case in a very full and exhaustive opinion, of which the following is the concluding part: ‘ ‘Finally, it is contended that because G. J. Lovejoy was made the nominal mortgagee in the security claimed by the plaintiff, and the trial court found that the mortgage was made by the mortgagors to hinder and delay their creditors, and that 0. J. Lovejoy participated in the fraudulent intent of the mortgagors, the mortgage is necessarily void as a security in favor of the plaintiff, though the court also found that the plaintiff knew nothing of such fraudulent intent of the mortgagors. It is said that G. J. Lovejoy took nothing under the mortgage be
And this brings us to the consideration of the fact that the evidence has not been brought up by the bill of exceptions. Under rule 12 of this court it is provided that if the facts “be disputed, or a defect of proof be the ground of ruling or exception, the evidence shall be set out at length.” ‘ ‘Where the evidence is not in the record, the general presumption will save the instructions, if they can be regarded as correct upon any supposable state of facts under the issues.” Elliott, App. Proc. § 722, citing a long list of authorities; also, see sections 812, 820, 823. The case at bar furnishes an excellent illustration of the necessity of such a presumption, and .of the rule of this court, that the evidence should be set out at length. The appellants in their original brief say, ‘ ‘The capacity, as shown from the record in this case, in which Mr. Brown acted for interpleaders, was that he assisted in drawing up the mortgages, took them, and transmitted them to the respective interpleaders, and was not the regular agent of the interpleaders for the purpose accomplished in that respect.” Whereas the appellees in their brief set out the proof as follows: ‘ ‘But in this case the appellees contend, and the proof on the trial of the case showed, that the giving of the mortgages by Carey was not intended for security; on the other hand, the contention of the appellees was and is that Brown, the agent for all the
The third assignment of error is directed to the fourth instruction of the court to the jury, which is as follows: “You are further instructed that if you find, from all the evidence in this case, that said R. B. Croam and W. V. Carey were partners at the time of the execution and delivery of the mortgages from said Carey to interpleaders herein; and to said Croam, said mortgage to said R. B. Croam is fraudulent and void as against the plaintiffs herein; and if you further find, from all the evidence in the case, that C. E. Brown, as agent for the interpleaders herein, had knowledge or notice of such partnership at the time of or prior to the execution and delivery to him of said mortgages to in-terpleaders herein, and acquiesced therein, the interpleaders cannot recover, and your verdict should be for the plaintiffs.” In regard to his assignment of error, this court is of the opinion that-the presumption is in favor of the instruction, because the evidence upon which it is based is not in the
‘ ‘The appellants, for their fourth assignment of error, objected to the following charge of the court: “You are further instructed that if you believe, from all the evidence, that any witness has intentionally testified falsely to any material fact on the trial of this cause, you may disregard his entire testimony, unless the same is corroborated by the testimony of other witnesses ” But it appears, from an examination of the transcript of the record, that the foregoing was only the latter clause of the charge of the court upon the subject, and that the full instruction of the court is as follows: “The court further instructs the jury that you are the sole judges of the credibility of the witnesses, and the weight to be given to their testimony, and that, in determ in-
The sixth error to which our attention is called is the giving of the following instruction, and it is set forth in the supplemental brief of appellants. It is as follows: “The court further instructs you that a partnership is an association of two or more persons in some enterprise or business in which the various partners in the business share in the