22 Colo. App. 134 | Colo. Ct. App. | 1912
Appellee, as plaintiff below, brought her action in the county court in replevin, to obtain possession of a certain automobile which she alleged defendant wrongfully withheld from her. The sole issue in the
1. Five days before the case was called for trial one of defendant’s attorneys filed,an affidavit made by himself, supporting his motion for a continuance. This affidavit was deficient in the following particulars. (1) it failed to set up what the absent witness would swear to, if present.
Cody v. Butterfield, 1 Colo., 377; Chase v. People, 2 Colo., 509; Glen v. Brush, 3 Colo., 26.
(2) The affidavit failed to disclose the where
Furthermore, it appears from the record that the defendant had known the whereabouts of the witness for three months or more, and on account of his absence made a similar application for a continuance when the case was tried in the county court, but in that application, that is, the one made to the county court, what was expected to be proven by the witness was set forth, and the plaintiff stipulated that if the witness was present, he would swear to the state of facts to which, by the showing made, it was stated he would testify, and the case went to trial, with the result that verdict and judgment went against defendant in the county court.
(3) No attempt appears to have been made to take the deposition of this absent witness, and no request was made of the trial court for a short continuance for the purpose of taking his deposition. Neither does the affidavit show due or any diligence to procure the presence of the witness at the trial, as required by sec. 194 of the code (R. S.)
The affidavit in support of a motion for a continuance should ordinarily be made by the applicant, rather than his attorney, and where the applicant cannot, for some reason, make the affidavit himself, the reasons of his inability should be made to appear. 4 Enc. Pl. & Pr., 875; 9 Cyc., 135. For the reason- stated, the trial court committed no error in denying the motion for a continuance.
2. No instructions were tendered by appellant, hence if the instructions as given by the trial court
Error is assigned on the giving of instructions 2, 3, 5, 6, 7 and’ 7%. We find no objections or exceptions whatever to any instruction in the abstract of record, and no objection whatever appears to have been interposed or saved as to instructions 7 and 7%. We might, with propriety, decline to- consider all assignments of error based on the instructions, for the reasons pointed out, and we must so decline as to instructions 7 and 7%> to which'no attempt whatever was made to save exceptions. The rules governing the preparation of abstracts are accessible to all practitioners, and have been in existence for a great many years, and almost every one' of our seventy volumes of reported cases contain suggestions and admonitions concerning this mat- ’ ter, and the proper practice as to making objections and saving exceptions. It would seem that by a little care, attorneys ought to find no difficulty in following these rules and the suggestions, so often made by our courts of review, at least substantially.
We perceive no error in the instructions, but since one complaint with reference to them is vigorously debated, and many authorities are cited by appellant to support his contention, we shall consider it. It is urged that the trial court, in various instructions, intimated or insinuated that whether-the defendant purchased the automobile from Mar-low or his company was a question for the jury to determine. The only testimony offered on this point was that of the defendant himself. He testified positively and unequivocally that he purchased the ma
"Whatever the rule may have been, at a time when interest absolutely disqualified a witness, as to the weight and sufficiency of the testimony of a single witness, it is not now the rule that the unsupported, though uncontradicted, testimony of a party to a contested suit is sufficient, as a matter of law, to establish the fact concerning which he testifies. So in this case, it was not only not error for the learned trial judge to submit the question of defendant’s purchase of the car to the jury for its determination, but he discharged his plain duty by so doing. We believe the authorities, a few of which will be cited later, are in substantial accord on this question. In the present case (as indeed in substantially all jury cases generally) the jury was instructed as follows:
“You are the sole judges of the weight and sufficiency of the testimony, and the credibility of the witnesses who have testified; and in passing upon this question, you may determine, and have the right to determine, from the appearance of the witnesses on the stand, their manner of testifying, their apparent candor and fairness, their apparent intelligence or lack of intelligence, and from all the circumstances appearing on the- trial, which witnesses are the more worthy of credit, and to give credit accordingly. You may also take into consideration the interest, if any, which any witness may have in the result of this trial, and if you believe from the evidence that any witness has wilfully and cor*141 ruptly sworn falsely to any material fact in the case, then you are at liberty to disregard the entire testimony of such witness, except in so far as the same may be corroborated by some credible testimony, or in so far as the facts and circumstances are proven on this trial.”
No objection was made by appellant to this instruction, and we apprehend that it will not be contended that it does not correctly state the law. If appellant’s contention that when the defendant has spoken, his testimony binds court and jury until some evidence in conflict therewith is produced is sound, then the stock instruction which we have just quoted in part must be qualified so as to read:
“You are the sole judges of the weight and sufficiency of the testimony and the credibility of the witnesses who have testified (except the plaintiff or the defendant), and in passing on this case you may determine, and have the right to determine, from the appearance of the witnesses on the stand * * * which witnesses are the more worthy of credit, and to give credit accordingly (except as to the plaintiff or the defendant). You may also take into consideration the interest, if any, which any witness may have in the result of this trial (except as to the interest of the plaintiff or of defendant). And if you believe from the evidence that any wit‘ness (except the plaintiff or the defendant) has wilfully and corruptly sworn falsely to any material fact in the case, then you are at liberty to disregard the entire testimony of such witness. When, however, the defendant (as in this cáse) shall testify in his own behalf, his testimony is absolutely binding upon you, and you must accept as true what*142 ever he has testified to, unless and until evidence in contradiction thereof is produced.”
It ought to require no authority to support our conclusion as already announced, viz., that the testimony of a party to a suit, upon an issue raised by the pleadings, does not, as a matter of law, establish the truth, and take from the jury the right and the duty to determine the issue concerning which he testifies, even though no evidence in contradiction thereof be produced on the trial. But we cite in support of our conclusions the following cases:
Turner v. Grobe, 24 Tex. Civ. App., 554; Coats v. Elliott, 23 Tex., 606; Monoz v. Wilson, 111 N. Y., 295; Bonnentheil v. Brewing Co., 172 U. S., 401; Elwood v. W. U. Co., 45 N. Y., 549; Huff v. Cox, 2 Ala., 310; Rhodes v. Lowery, 54 Ala., 4; Starr v. Fuller et al., 71 Ia., 425; Bank v. Wallach, 45 N. Y. Sup., 885; Thompson on Trials, sec. 2287.
Mr. Thompson says:
“But where the plaintiff makes out a case by undisputed testimony, it is not error to instruct the jury that if they believe such testimony, to find for the plaintiff, and to point out to them that the defendant has seen fit to offer no contravailing testimony. But under any theory of the relative provinces of court and jury, where there are questions of fact for the determination of the jury, it is error, even in those jurisdictions where the court is allowed to sum up the evidence, to give a charge which virtually decides the questions of fact, and withdraws them from the consideration of the jury.”
3. In support of his motion for a new trial, defendant filed his own affidavit, and that of his counsel, the affidavits being offered for the purpose
In the latter case Mr. Justice Field said:
“The affidavit of Marshall as to the testimony which Hoffman would give, should have been accompanied by Hoffman’s affidavit. Hoffman’s absence at his residence at Forest Hill, and the consequent inability of Marshall to obtain his affidavit in time, was not a sufficient excuse for its non-production. If necessary, application should have been made for additional time to obtain and file it.”
The care required in the preparatiomof motions for new trials, and the affidavits in support thereof, is pointed out in the following Colorado cases:
Outcalt v. Johnson, 9 Colo. App., 519; Barton v. Laws, 4 Colo. App., 212; C. S. & I. Ry. Co. v. Foglesong, 42 Colo., 341; Cole v. Thornberg, 4 Colo. App., 95.
Motions for new trial based upon newly discovered evidence are ordinarily not favorably regarded, and their disposition usually is left to the discretion of the trial judge, whose action in deny-, ing such motions will not be reversed, except for gross abuse of discretion.
Baylies New Tr. & Ap., 527-9; Spelling’s New Tr. & Ap. Proc., vol. 1, secs. 206-9-21; Enc. Pl. & Pr., vol. 14, p. 790-9; Hayne New Tr. & Ap., p. 250, sec. 87; Arnold v. Skaggs, 35 Calif., 684; Baker v. Joseph, 16 Calif., 180.
We quote the following from the opinion in the Baker case:
*146 “Tlie temptations are so strong to make a favorable showing after a defeat in an angry and bitter controversy involving considerable interest, and the circumstance that the testimony has just been discovered, when it is too late to introduce it, so suspicious, that courts require the very strictest showing of diligence, and all other facts necessary to give effect to the claim.”
Under the well-established rules as laid down in the authorities cited, the affidavits in support of the motion for a new trial were wholly insufficient, and the trial court committed no error in denying the motion.
The judgment must be affirmed.
Affirmed.