188 Iowa 1126 | Iowa | 1917
Lead Opinion
The defendants James -E. Siver and Elizabeth Siver were formerly residents of New York, from which state they removed to Iowa, about the year 1896. While residing in New York, James E. Siver, being the owner of a house and lot in the town of Altamont, exchanged the same with John S. Secor, for a tract of about 90 or 100 acres, lying upon wiiat ivas locally known as the Hilde-berg Mountains. In the exchange, the Altamont property was estimated at $1,500, and th,e farm at $3,500, and payment of the difference was secured by a mortgage upon the land. Later, the mortgage was foreclosed, and the land was sold to Secor at sheriff’s sale for $1,010, leaving a deficiency judgment against- the mortgagors of about $1,700. This judgment was rendered August 28, 1895. In March, 1912, a transcript of this judgment was sent for collection to ap
The defendants Frank Siver and Ed Siver answered separately, denying the alleged fraudulent character of the conveyances-. The judgment defendants, James E. Siver and Elizabeth Siver, answered separately, denying the claim sued upon, and pleading, by way of counterclaim, that they entered into the exchange of the Altamont property for the mountain farm, as hereinbefore mentioned; that they were led and induced to enter into such exchange by the fraud and false representations of said Secor; that said defendants had no practical experience or knowledge with respect to such property as Secor proposed to convey to them; that he represented and described the property as having a thrifty and productive orchard thereon, a fertile soil, a suitable and habitable house, a sawmill, having a good business, and being within convenient reach of growing or standing timber, from which custom sawing could be expected, 35 acres of meadow gnd pasturage sufficient to keep 8 to 10 cows, and that the property was easily worth the price of $3,500 which he placed upon it. Believing and relying upon such representations, defendants say they entered into the agreement, conveyed the Altamont property to the said Secor, and gave him the note and bond, or mortgage, upon which the judgment now in suit was procured. They allege, however, that said representations were false; that the house was in a dilapidated and ruinous condition ; that the orchard was very largely infected with borers, and would not procure a marketable crop; that the sawmill was a worthless ruin; that there was not pasturage for more than four cows; that the timber fit for sawing in that neighborhood had been exhausted; that most of the land lay on an unproductive mountain side; and that the actual value of the property did not exceed $1,000, or substantially nothing above or beyond the value of the Alta-
To this counterclaim the defendant demurred, as stating no ground of recovery or set-off in the' defendant’s favor, and as being matter which should have been set up or pleaded in the foreclosure proceedings. The demurrer was sustained; but, upon defendants’ appeal from the ruling, it was reversed by this court, and the cause remanded for trial upon the issue so tendered. See Secor v. Siver, 165 Iowa 673. Upon remand of the case to the court below, a trial was had upon the merits, with the result already indicated.
In support of appellants’ demand for a reversal of the judgment of the trial court, counsel present and argue several propositions.
Assuming, for the present, that objections to the competency of the witnesses were properly raised, it is doubtless true that some portions of their testimony should be excluded from consideration, in passing upon the merits of the case; but we think it not less clear that the husband and wife were still competent to testify to much of the matter related by them. The familiar statute (Code Section 4604) relied upon by the appellant provides that neither a party to a suit nor the husband nor wife of such party
It has also been frequently held that, a party is competent to testify to facts and circumstances from which the truth as to alleged transactions between such party and the
And where the party testifying claims to have been defrauded by false representations made by the deceased, he is not incompetent to testify to his reliance on such representations. Gray v. Sanborn, 178 Iowa 456.
It will be observed, therefore, that a party to a suit against the administrator of a deceased person is not, in any general sense of the word, an incompetent witness in his own behalf, and his right to testify to any material fact within his knowledge is unrestricted, except as to the particular matter concerning which the statute provides he shall not be examined: that is, personal transactions and communications between himself and the deceased person.
We are satisfied that the testimony of James E. Siver and wife concerifing the deal with Secor was not all vulnerable to the statutory objection, and that enough was admissible to make the issue one of fact, and not of law. Under our practice in equitable actions, all evidence offered is generally preserved in the record, subject to such objections as may be made thereto by either party. On appeal to this court, we must presume that the trial court disregarded all testimony which was vulnerable to the objections made, if any, and that its conclusion was based splely upon the admissible evidence. If, on a review of the record, we find that it fairly presents an issue in fact for judicial determination, we have then only to consider whether, in our judgment, the decree below is or is not substantially correct; and, while the hearing in this court is' de novo, it is always had with due recognition of the fact that the trial court is better situated to properly estimate the veracity
II. The scope of our consideration of the alleged incompetency of witnesses necessarily depends upon the character of the objections raised by the appellant in the court below. It is the settled rule in this and in most courts that objections to the incompetency of witnesses must be made specific, and set forth the grounds or facts which, it is claimed, render their examination improper. An objection to the evidence offered is not sufficient to raise the question of the competency of the witness, and, if the specified objection is found not to be well .taken, the party making it cannot, on appeal, avail himself of another objection which he has not specified. The abstract in this case discloses that part of the evidence used in the court below was in the form of a transcript or depositions, and that, when the testimony of the defendant James E. Siver was offered, and before any part of it had been read, the plaintiff entered the following objection:
“Plaintiff objects to each and every interrogatory propounded to the witness James Sivers in this transcript, as being incompetent, irrelevant, and immaterial, calling for hearsay testimony, calling for the opinion and conclusion of the witness, and no facts; not the best evidence. The witness is incompetent .and unqualified, and the question is leading and suggestive, and the plaintiff moves to strike out each and every part of each and every answer made, for all the reasons stated in the foregoing objection.”
To this was added a “concession,” in the following form :
“It is conceded that the foregoing objection and motion shall stand without repetition.”
At a later stage of the trial, another deposition by James E. Siver was introduced. Therein, the witness first
“Objected to by plaintiffs as incompetent, irrelevant, and immaterial, leading, suggestive, and hearsay, and not the best' evidence, calling for the opinion and conclusion of the witness, and no fact. It is a voluntary statement of the witness, calling for the mental operations of the witness;' and also that the witness is incompetent to testify as to matter inquired about, and also incompetent under .the statute prohibiting the witness, as a party to the suit, from detailing personal transactions with a person since deceased, and involving the matters in controversy as against the administrator in this case. Plaintiffs move to strike each and every answer and each and every part of each answer, for the same reasons as stated in the foregoing objection.”
By agreement of parties, this objection stands “to each and every interrogatory propounded to the witness.”
íhe foregoing constitutes the entire record of the objections to the competency of James E. Siver to testify. The first is manifestly insufficient to raise the question which appellant argues to this court. As will be seen, this objection, so far as it relates to the witness, is simply a general assertion that he is “incompetent and unqualified.” It does not direct the attention of the court to the fact or facts which, to counsel’s mind, make him incompetent. An offered witness may be wholly incompetent to testily at all, because of want of capacity to understand the obligation of an oath; or his incompetence may be limited to certain matters, knowledge of which he has acquired in professional confidence, as an attorney, a physician, or a priest; his marital relations may be such as to exclude him from the
“A mere general objection that the witness is incompetent is not, ordinarily, sufficient; the objector must state particularly and specifically the grounds of objection.”
This Tule is abundantly supported by tbe authorities generally. For example, in 30 American & English Encyclopedia of Law 973, it is said:.
“In many cases, a witness may be competent to teslify to some of tbe facts in issue, though incompetent as to others, and therefore should not be rejected generally. It follows that the objection should be sufficiently specific to enable the court to pass on the competency of the witness as regards the particular rfacts which he is called to prove, as well as to allow the opposite party to remove the incompetency, if possible.”
To the same effect are Emery v. Vinall, 26 Me. 295; Elwood v. Diefendorf, 5 Barb. (N. Y.) 398; Richardson v. Wilkins, 19 Barb. (N. Y.) 510; Peters v. Horbach, 4 Pa. 134; Brown v. Grove, 116 Ind. 84; Foxton v. Moore, (Iowa) 87 N. W. 492; Holmes v. City of Fond du Lac, 42 Wis. 282, 285.
III. Passing from the question of the competency of the witnesses to the merits of the issue upon the defendant’s counterclaim, it is sufficient here to say that the court below was justified in finding the equities to be witli the appellees. It may be true that defendants appear to have been “easy marks” for a shrewd and persuasive trader ; but the fact that, as a net result of the deal with him, he shortly became the owner of both pieces of property and a deficiency judgment of more than $1,600 against the defendants, while they were left without a dollar to represent any consideration therefor, makes it very clear that they were grossly overreached in the transaction. If the testimony is to be believed, this was accomplished by misrepresentations of a material character. That defendants were entitled to set up their claim for damages in this action on the foreign judgment was settled upon the first appeal. We find no reason for disturbing the decree of the district court upon the merits of the controversy.
The costs appear to have been taxed against the ad-ministratrix as such, and there is nothing in the record to indicate that defendants are thereby prejudiced. We cannot assume that the costs will not be paid, as taxed, or that the order's of the court below in that respect will not be observed by the plaintiff. There is no apparent error in the ruling complained of, and the appeal therefrom cannot be sustained.
Tt follows that, on both appeals, the decree of the district court must be — Affirmed.
Dissenting Opinion
(dissenting). As the writer interprets the record before us, the conclusion of the majority is erroneous in two particulars: First, in holding the objection of counsel to the competency of James E. and Elizabeth Siver as witnesses insufficient, under the statute, to cover communications; and, second, in holding that any substantial part of their testimony is admissible. The testimony of these witnesses covered two conversations with John S. Secor, and related to the exchange of properties complained of. James E. and Elizabeth Siver were husband and wife, and were sued jointly in this action. The objection of counsel, which is copied in full in the majority opinion, was based upon Section 4004 of the Code, but does not refer more specifically thereto than as “the statute prohibiting the witness, as a party to the suit, from detailing personal transactions with a person since deceased.” Both “transaction” and “communication” are used in the statute. The
“While the word ‘transaction,’ as used in the statute, may not, perhaps, be open to any all-embracing definition universally applicable to all cases, it is, perhaps, sufficient for present purposes to say that anything said or done between the witness and deceased, or any act or communication in which they both had any part, and of which jboth had knowledge, and concerning which the deceased, if living, could speak in corroboration or denial of the statements of the living witness, is a ‘transaction,’ within the
This definition was criticized in Hayes v. Snader, 182 Iowa 443; but the limitations placed thereon in said case are scarcely applicable to the present controversy. As bearing upon this question, see Holliday v. McKinne, 22 Fla. 153; Harte v. Reichenberg, (Neb.) 92 N. W. 987; Cunningham’s Admr. v. Speagle, 106 Ky. 278 (50 S. W. 244) ; Whitney v. Brown, 75 Kan. 678 (90 Pac. 277).
In the opinion of the writer, the objection was clearly sufficient; and, if the witnesses were, in fact, incompetent, under Section 4604, to testify to either communications or transactions with Secor, it should be sustained.
James E. Siver, his wife, and Secor wex*e all present during all of the conversations covered by counsel’s inquiry. The conversation of Secor was apparently addressed to both of the defendants, although the conversations- were probably had principally with the husband. Occasionally, the conversation between the two men was interrupted by an inquiry of the wife as to various matters relating to the farm, defendant’s ability to pay therefor, etc. The conversation appears to have been orderly, and but one of the parties spoke at a time. The matters detailed by the witnesses relate to the same subject-matter. Both defendants were interested listeners to what Secor said. There were not two independent series of conversations, one. between James E. Siver and Secor,-in which the wife took no part, and another between the latter and his wife, in which the husband took no part, but two continuous conversations, addressed to and participated in by all of them. It does not appear that there was a completed, independent conversation between James E. Siver and Secor, in which Ms wife took no ■ part, but which she overheard, nor a completed, independent conversation between Secor and .Mrs.
For the reasons stated, I would reverse.