24 Minn. 339 | Minn. | 1877
1. The plaintiff moves to dismiss the appeal upon two grounds. The first is that the appeal bond is insufficient, because executed by two practicing attorneys as sureties, in disregard of the fourth district court rule.
The defendant contends that, as the statute does not prohibit an attorney to become a surety, this rule is in derogation of the statute and therefore void. The statute is silent as to who shall and who shall not be a competent surety. But attorneys at law are officers of the court, which is therefore necessarily invested with general authority to control and protect them, so far as their professional character and duties, and their relations to suitors, to the court, and to the administration of justice,' are concerned. The purpose and effect of the rule is to protect attorneys from the unreasonable importunities of clients, who, not satisfied with the faithful discharge of professional duty, insist that their attorneys shall become sureties for the result of litigation. To yield to their importunities is to assume pecuniary risks and losses which it is no part of the professional duty of an attorney to assume, and which he therefore ought not to assume. They are risks and losses, the assumption of which tends to make an attorney a quasi principal in litigation, rather than an offi
The motion to dismiss will therefore be granted upon the first ground, unless the appellant file a new appeal bond, or it be waived by the respondent.
2. The other ground of the motion to dismiss is that the appeal is taken from an order denying a new trial made after the entry of final judgment. The facts are that the motion for a new trial was made before the entry of judgment, a stay of proceedings being granted for the purposes of the motion ; that the stay being about to expire defendant applied for a further stay until the decision of the motion; that his application was denied, and thereupon judgment entered for the plaintiff, while the motion for a new trial was pending and undetermined. After the entry of judgment the order was made denying the motion for a new trial. This order cannot be reviewed upon an appeal from the judgment, and it is apparent that no opportunity was afforded for appealing from it before judgment. Yet the statute expressly gives a right of appeal from an order “refusing a new trial.” To preserve this right of appeal we are of opinion that in an action tried by a jury, when, as in the case at bar, a party, notwithstanding he has used due diligence, has been unable to prevent the entry of judgment before the determination of a pending motion for a new trial, is not deprived by such entry of his right of appeal from an order made after the entry of judgment denying his motion for a new trial. Any other holding would practically nullify the statute, and deprive a party of its
3. The plaintiff brings this action by a guardian ad litem. The complaint alleges the due appointment of the guardian ad litem by the judge of the district court in which the action is brought.
The answer denying the allegations of the complaint, the defendant insists that the effect of the denial is to traverse and put in issue the allegation of the guardian’s appointment. We do not agree to this. By our statute (Gen. St. c. 66, § 30) the guardian ad litem is appointed by “the court in which the action is prosecuted, or by a judge thereof;” and the appointment is therefore properly of record in that court. In view of this fact, if an appointment has not been duly made, or if any person assumes to act as guardian without any appointment, we think the better and more convenient practice is to take preliminary objection by motion, before interposing an answer to the merits. Such an answer may well be taken as a concession that there is a plaintiff properly in court to .be answered; or, in other words, in a case like this at bar that the guardian ad litem, by whom alone an infant plaintiff can properly appear, has been regularly appointed.
4. The complaint alleges that the defendant did “wrongfully, unlawfully and forcibly make divers assaults upon” the plaintiff, and did “on several occasions violently seize hold of * * and throw her down, ” and did “on said several occasions attempt to have, and actually did have, carnal knowledge of her body. ” For the pain and injury occasioned by the alleged wrongful acts this action is brought to recover damages. The plaintiff introduced evidence tending to sustain the allegations of her complaint, and it also appeared that the defendant was the plaintiff’s step-father, and that she resided with him during the period when the alleged wrongs were charged to have been committed by him. The defendant offered to show,
5. The defendant offered evidence of his character for chastity, and evidence of his good moral character, but it was excluded by the court. This also was error. The charges against the defendant involved his moral delinquency. That a chaste man or a man of general good moral character would commit such acts as were charged upon him is improbable, because it is contrary to common experience. For its tendency to establish this improbability the evidence should have been received.
6. The defendant requested the court to instruct the jury that if they.should find that any of the witnesses knowingly testified falsely to any material fact they must disregard the entire testimony of such witnesses. The court declined to give the request, but proceeded to instruct the jury that if a
The instruction given was not quite accurate. The true xule is that the credibility of a witness who knowingly testifies falsely as to one or more material facts is wholly a matter for the jury. They may believe or disbelieve his testimony as to other facts according as they deem it worthy or unworthy of belief. State v. McCarty, 17 Minn. 76.
The order denying a new trial is reversed, and a new trial •directed.