62 Iowa 676 | Iowa | 1883
Lead Opinion
I. The plaintiffs allege that they are the abso - lute and unqualified owners of the property in question, a stock of general merchandise, which was seized by defendants upon certain attachments issued against one TI. M. Waite.
The answer shows the attachments upon which the goods were seized — all against Waite, and alleges that plaintiffs’ claim upon a pretended sale of the goods, which was made with the purpose of defrauding Waite’s creditors on the part ‘of plaintiffs and Waite, as well as of one Patterson, who was connected with the transaction.
The questions in the case upon which there arises any dispute involve the good faith of plaintiffs’ purchase of the goods.
We will consider the objections to the judgment in the order of their discussion in the argument, of defendants’ counsel.
II. Patterson testified that lie bargained for the goods, and, in order to make a payment, borrowed the money of
III. The witness, Patterson, was asked upon his cross-examination by defendants, to state a conversation he had with
IV. Plaintiffs objected to evidence given by the witness
Y. Complaint is made that tbe circuit court erroneously
YI. Tbe refusal of the court to give to tbe jury certain instructions requested by defendants is complained of by defendants.
YII. The instructions given to tbe jury are expressions of the law quite favorable to defendants. We discover no just ground of complaint against them. Their scope and character are indicated by what we have said in tbe preceding point.
YIII. Tbe evidence sufficiently supports tbe verdict. While it cannot be doubted that tbe sale was made under
We have considered all questions discussed by counsel. The judgments of the circuit court must be
Affirmed.
Rehearing
OPINION upon REHEARING.
I. A rehearing was granted in this case at a former term, and it has again been submitted upon the argument of counsel.
We entertained no doubts upon the questions decided in the foregoing opinion, except those involved in the third.and
The abstract shows the examination of the witness Patterson, touching the excluded evidence, in the following language. Nothing farther relating thereto is found in the abstract:
“Q. Now, didn’t you see Mr. Humphrey on that morning and say to him, £ I have a customer that I think will buy Waite out,’ and Humphrey says, £he won’t pay Waite over fifty cents on the dollar, and it won’t pay the claims,’ and*681 didn’t you say then, ‘that is more than Waite will get if his creditors shut down on him?’
“A. I had a conversation with Humphrey, but that wasn’t it in substance. No, sir.
“Q. Now state the conversation you did have with him.
“[Objected to as not proper cross-examination, immaterial and incompetent. Sustained. Defendants except.]”
What that conversation was, or even what it was about, and whether it related to a matter in issue,' cannot be determined, or even inferred, from this quotation from the abstract. Under the foregoing rule, we cannot exercise presumption as to the character and substance of the evidence, and cannot attempt to determine its admissibility.
II. The evidence referred to in the fourth point of our
“After I went to the door of Yotaw & Hartshorn’s office, and found it locked, and rapped and got no response, I found the deputy sheriff, and directed him to levy on the goods and books, and he carried them out of the building, and I directed him to hold possession of the store and goods, and we commenced to invoice after dinner.
“[Plaintiffs object to and move the court to strike out all that part of the witness? testimony relating to the conversation with the deputy sheriff, because his return is the best evidence of what was done. Objection sustained and motion granted, and defendants except.] ”
What was the conversation here referred to does not appear. It could not have been the directions to levy, for they do not appear to have been replied to; and a simple direction without a reply cannot be called a conversation. Neither would a direction neccessarily appear upon the officer’s return, and we cannot presume that the court so decided. It is probable that the conversation may have related to some act that