No. 1599. | Nev. | Jul 5, 1901
Lead Opinion
The facts sufficiently appear in the opinion. Plaintiff recovered judgment in the trial court for the sum of $18,236.69, being, as plaintiff alleged, the balance due on *218 a contract of sale by the plaintiff to the defendant of certain personal property; the contract price therefor being $20,241.69, and the defendant having paid the sum of $2,005, thus leaving unpaid the said sum of $18,231.
Defendant denied that the contract was for the sale of the personal property only, but alleged that a certain lease and leasehold right was to be assigned by plaintiff to defendant, and that the sum of $20,241.69 was the price agreed to be paid for both said personal property and said lease and leasehold right.
Defendant further alleged that the plaintiff failed and refused to assign said lease and leasehold right to him, thus breaking the contract.
Defendant pleaded the above-mentioned breach of contract as his defense, and claimed of the plaintiff damages for said alleged breach the sum of $10,000.
Defendant also alleged that the said personal property was not worth the sum of $20,246.69, or any greater sum than $10,000. The defendant appealed from the said judgment, and also from the order of the trial court denying his motion for a new trial.
The defendant moved for a continuance in the case. The court denied the motion, and defendant assigned the said denial as error. The facts concerning this assignment of error, as they appear by the settled and certified statement on appeal, are as follows:
"The defendant moved for a continuance of said cause upon the ground of the unavoidable absence of material and necessary witnesses in said cause, to wit, the absence of Joseph Friedman and Minnie Friedman, his wife. Said motion was made upon the following affidavit, to wit: `In the District Court of the First Judicial District of the State of Nevada in and for the County of Douglas. L. Yori, Plaintiff, vs. E, Cohn, Defendant. State of Nevada, County of Douglas — ss. Elkan Cohn., being duly sworn, on oath deposes and says: That Joseph Friedman and his wife, Mrs. Friedman, are important and material witnesses for him (defendant) upon the trial of the above-entitled cause. That both of said witnesses are at present at Stockton, San Joaquin county, California, and that on account of the sickness *219 of said Mrs. Friedman both of said witnesses are unable to attend and be present at the trial of the above-entitled action.
"`The affiant, the said defendant, cannot safely proceed to trial in the above-entitled action without the presence and testimony of both of said witnesses, and that he cannot show or prove the same matters and facts which he expects to prove by said witnesses by any other persons, and particularly as to the said witness Mrs. Friedman. That by the witness Joseph Friedman affiant expects to prove and show and establish all of the allegations, matters, facts, and statements set out and contained in his answer to the plaintiff's complaint in the above-entitled action;i.e. expects to prove the agreement between plaintiff and defendant, and the non-performance of said agreement on the part of said plaintiff as stated in said answer, and all other material allegations therein.
"`That by the said witness Mrs. Friedman, affiant expects to prove all of the allegations contained in his said answer concerning the non-delivery of the property which the defendant claims in his answer that plaintiff sold him; and the plaintiff has and did deprive this affiant, the said defendant, of whatever of possession or partial possession of the said property he had previously placed him in, or delivered to him; and that plaintiff has and did by fraud, force, and arms, etc., as alleged in the answer, retake and recover from defendant whatever of partial possession he had previously given and delivered of said property and ranch to defendant; and other matters alleged in said answer. That affiant has used all practicable and possible diligence in endeavoring to obtain the presence and attendance of both of said witnesses since the setting of this action for trial.
"`That the said witnesses wrote to this affiant that they would be here at the trial of this action, and according to his best knowledge, information, and belief said witnesses are only prevented from being here by said sickness of said Mrs. Friedman; and, if the trial of this action is postponed for a short time, affiant has no doubt but he can obtain the attendance of both said witnesses. That at the time this case was set for trial said witnesses were in California, and *220 beyond the jurisdiction of the process of this court. Wherefore affiant prays that said trial of this action be continued for two or three weeks to enable him to have the attendance of said witnesses. Further affiant saith not. E. Cohn. Subscribed and sworn to before me this 16th day of Oct., 1899. N. Blossom, Clerk.'
"Also upon the following telegram: `Stockton, Cal. To Sam Platt: My wife very sick. Cannot come till twenty-third. Answer. J. Friedman.' Also upon the following letter: `Homestead, Oct. 13, 1899. Elkan Cohn, Carson City, Nev. — Dear Sir: Yours of the 11th was received by me last evening. In answer will state that Mr. Friedman and I will come without fail to attend the case. I look for Mr. Friedman home from the city Saturday morning. We will wire, and let you know when we leave here, so you can have the case come up when we get there. Hoping you are in good health, I will close, with kindest regards to yourself and brother, Toby. Respectfully, Mrs. J. Friedman.'
"Alfred Chartz, Esq., attorney for plaintiff, was sworn in rebuttal of said affidavit and in opposition to said motion for a continuance as shown by the stenographer's report of the testimony and proceedings herein, as shown upon pages 11 to 13 of this statement. Said affidavit was read to the court, but the court denied plaintiff's motion for a continuance of the trial of said cause, to which refusal and ruling defendant duly excepted."
"Monday morning, Oct. 16, 1899. The case of L. Yori, Plaintiff, v. Elkin Cohn, Defendant, called.
"The Court: Are you ready to try this case"?
"Mr. Virgin: If your honor please, the defendant has received a telegram from two important witnesses in this action. On account of sickness, they are unable to be here at this time, and the defendant has made an affidavit showing what I consider good grounds for a continuance. I ask that the case be continued for a week or two, so as to allow these two witnesses, a man and his wife — The wife is ill; too ill to accompany the husband, and the husband does not want to leave a sick wife; and we need the attendance of both witnesses. I will read the affidavit of Elkin Cohn as to the sickness of Joseph Friedman and his wife. If your *221 honor please, the court cannot understand the materiality of this affidavit without the reading of the answer. I will read the answer, and then your honor will understand whether these allegations are material or not. (Answer read.) Now, if your honor please, what we expect to prove by Joseph Friedman is the whole transaction, and Joseph Friedman knew all about it, because, as will be shown, made this arrangement as between Mr. Yori; that is, as I understand it, he was commissioned so to speak by Mr. Yori for so much to sell this lease to Elkin Cohn. Could you imagine a more material witness?
"Mr. Chartz: We will object to any continuance, on the ground that no diligence has been taken.
"Mr. Virgin: We offer, if your honor please, this telegram, and we ask permission of your honor to read it: `Stockton, Cal., Oct. 15, 1899. To Sam Platt, Carson City, Nevada: My wife very sick. Cannot come till 23d. Answer. [Sg.] Joseph. Friedman.'
"Mr. Chartz: No proper diligence has been exercised. Here is simply a statement, and no precaution has been taken to prove it; no certificate from a competent physician; absolutely nothing to show that this affidavit is true. Furthermore, we claim under the affidavit that the parties were in California — these two important witnesses. These two important witnesses were beyond the jurisdiction of this court at the time of the setting of this case, and defendant had ample time to move the court to take their depositions; but, instead of that, an attempt was made to get me to subpena them, so as to bind me by their testimony. I will show you that it is utterly false. I claim that the affidavit is utterly false. I got a telegram, too. `Stockton, Cal., Oct. 13, 1899. Mr. Chartz, Attorney at Law, Carson, Nevada: Please send subpenas by registered mail for Joseph and Minnie Friedman to Homestead, Cal. [Sg.] Minnie Friedman.'
"Mr. Chartz: And I will show, if your honor please, that Elkin Cohn took a team, and drove Joseph Friedman out of town, and he knows it very well.
"Mr. Platt: If your honor please, I take an exception to the statement of counsel.
"Mr. Chartz: These people wanted to come through me. *222 Now, they claim an undelivery of possession, misrepresentation, and the fraud they charge.
"Mr. Platt: I object to any argument of counsel as to the merits of this case. I interpose an objection.
"The Court: Argue simply to the motion, Mr. Chartz.
"Mr. Chartz: I claim that they have not used proper diligence, and they should have taken the depositions of these people. It is a great expense to bring the jury and witnesses here, and we are ready for trial, and they have used no means at all to accomplish their purpose.
"Mr. Platt: May it please the court, I call your attention to the date of that telegram, October 15, 1899 — yesterday, Sunday. It was sent from Stockton upon that date, and would have been impossible to secure the certificate of a competent physician to present before this court. We ask for this continuance on the ground that we have used all due diligence, on the ground that this telegram came at the last moment, and we could not get any better evidence than this telegram. If we could have gotten a physician's certificate, we would have done so; but we claim this is the best evidence of these parties' sickness and they are unable to be present.
"Mr. Virgin: I want to call your honor's attention to a letter that was received by Mr. Cohn on the same day as Mr. Chartz's telegram. `Elkin Cohn, Carson City, Nevada: Yours of the 11th was received by me last night. In answer will state that Mr. Friedman and I will come without fail to attend the case. I look for Mr. Friedman home from the city Saturday morning. We will wire and let you know when we will leave here, so you can have the case come up when we get there. Hoping you are in good health, I will close, with kindest regards to yourself and brother, Toby. Respectfully, Mrs. J. Friedman.'
"Mr. Chartz: I will call your honor's attention to the fact that there are no subpenas for these people at all.
"Mr. Virgin: These parties were both here at the time Mr. Friedman was here, about the day prior to the time this case was set for trial, and Mr. Cohn supposed he would remain here all this time.
"Mr. Chartz: I desire to be sworn, if your honor please. *223 (Mr. Chartz sworn to testify.) If your honor please, I had many conversations with Mr. Friedman and a man by the name of Davis. Both told me that the lease was no part of the sale. The lease was not to pass.
"Mr. Platt: I object to any such testimony. It goes to the merits of this case. The case has not been tried. He is not a witness capable of testifying until the case is tried upon its merits, and I contend that he be held now to the record.
"The Court: Proceed. (Defendant excepts.)
"Mr. Chartz: Mr. Friedman so stated in the presence of Mr. Platt in his office.
"Mr. Virgin: Q. You say that Mr. Friedman stated to you that this lease was not to pass? A. No lease to pass whatever; right in Mr. Platt's office.
"Q. That, according to the original agreement between the parties, there was to be no lease included in the sale? A. That is right.
"Q. Was there anything said in regard to anything on the part of Mr. Friedman? Did he say there was anything to pass besides this personal property? A. The price agreed upon was upon the personal property, and no lease in it. If you will call my attention to the matters, I will tell you all about it.
"Q. Was it to give him possession of the personal property? A. They were not on the Klauber ranch at the time.
"Q. Was the possession of the Klauber ranch to go into the sale? A. No possession whatever except the sale of the personal property.
"Q. Now, didn't Mr. Friedman state — if your recollection is so good — did he not state that Mr. Cohn was to be put in the possession of the Klauber ranch? A. He was in the possession of the Klauber ranch.
"Q. Did he so state? A. Nothing of the kind.
"Q. Was there anything to be included in the consideration of the payment of this, Mr. Chartz — any sum of money besides this personal property that you mentioned in your complaint? A. No, sir. Mr. Platt advised him to deliver those notes over to us.
"Q. What notes? A. There were some notes in Mr. Platt's possession. *224
"Mr. Platt: If your honor please, all this testimony is to go in under my objection.
"The Court: You may have the benefit of the exception. `The evidence given by Mr. Chartz as to what Mr. Friedman would testify to has no bearing on this motion, and will not be considered in deciding the motion.' (C. E. Mack, district judge.) As matters now stand, I will not continue it on that affidavit and telegram. Your witnesses were not within the jurisdiction of the court. You relied entirely upon their promise to come. You took no steps to get their depositions, as shown at the present. I cannot continue this case. If you made an attempt to get their depositions, I would relieve you in case anything had gone wrong. It would be unreasonable to continue this case. The case was set down some days ago. I shall not grant the continuance; so that settles it.
"Mr. Virgin: We ask for an exception.
"Mr. Platt: We ask that the letter and telegram be made a part of the affidavit.
"Mr. Chartz: We object to the affidavit and the letter and telegram on the ground that they are incompetent, irrelevant, and immaterial.
"The Court: The ruling is made.
"Mr. Platt: I ask there be a ruling upon this.
"The Court: There is nothing to rule upon. (Defendant excepts.)
"Mr. Virgin: I ask to introduce this.
"The Court: I do not know whether it is a telegram from them or not. Upon this mere statement that they are sick, and unable to be present here at this time, after two weeks in which to get their depositions — you depended entirely upon their word that they would be here. No showing is made that you used any diligence in getting testimony that was beyond the reach of this court. You depended entirely upon their word that they would come. I do not feel warranted to continue the case. Proceed, and, Mr. Clerk, call the names of twelve jurors."
We think, under the showing made by the defendant, he was entitled to a continuance, and we cite the following cases: (Johnson v. Mills,
In Johnson v. Mills, supra, the affidavit stated that a codefendant resided out of the state, and was the only witness by whom certain material facts could be proved; that affiant had gone to the home of his codefendant, and obtained his promise to be present at the trial, but for some unexplained cause he had failed to come; and that his testimony could be procured at the next term.
The court said: "The witness resided out of the state, and his attendance could not be compelled by the process of the court. The issuing of a subpena would have been unavailing. True, his deposition could have been taken, but Johnson had the right to rely upon the promise of his codefendant that he would be present and testify at the trial."
In People v. Brown,
Judgment reversed, and cause remanded for a new trial.
BELKNAP, J.: I concur.
Dissenting Opinion
I dissent for the reasons stated in the original opinion in this case.
Dissenting Opinion
I cannot concur.
Our statute provides that a motion to postpone a trial on the ground of the absence of evidence shall only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it. (Comp. Laws, 32.35.)
While it is true the affidavit upon which appellant based *226 his motion states that he had used all possible and practicable diligence to obtain the attendance of the Friedmans, it utterly fails to state what, if anything, was done to that end. The statement is a mere conclusion, and not a fact. It should have shown the facts — what steps had been taken to procure the evidence. And upon such showing it became the duty of the court to say whether due diligence had been used.
It appears from the affidavit that the witnesses resided in California at the time the cause was set for trial, which fact the appellant well knew. He also knew that their evidence was material to his defense. He took no steps whatever to procure their testimony, but relied solely upon their promise to be present at the trial — a promise which he could not enforce by any process of the court.
It seems to me that, under the provisions of the statute cited, which makes no distinction as to the showing required by the affidavit on account of the absence of evidence or without the jurisdiction of the court, some legal steps should have been taken to procure such testimony, in order to authorize the court to say that due diligence had been used.
It would be just as reasonable, under the requirements of the statute, to allow continuances on account of absent witnesses within the jurisdiction of the court, under promise to attend without service of process, as to allow continuances because of the absence of evidence of witnesses living without the jurisdiction of the court, under promise to attend the trial, where no attempt has been made to take the deposition of such witnesses, in a case where such deposition could have been taken before trial.
No court, so far as I have been able to find, has ever held that the promise of a witness within the jurisdiction of the court to attend the trial excused the failure of the party to use the process of the court to procure the attendance of such witnesses. All the authorities seem to hold the other way. (4 Enc. Pl. Prac. 862, note 12.)
The facts surrounding a particular case might create an exception to the general rule, and I believe that the rules of the cases cited in the opinion are based upon the peculiar facts surrounding each case.
In the case at bar it appears that the depositions of the *227 witnesses could have been taken in time for use upon the trial.
Nothing was done in that direction, and I do not believe that appellant can excuse his failure in that respect by relying upon their promise to be present.
Addendum
A rehearing has convinced me that the judgment should have been affirmed, for this reason: The affidavit for continuance shows that at the time the case was set down for trial in the district court the witnesses for whose absence the continuance was asked were in the State of California, and beyond the jurisdiction of the courts of this state. Under these circumstances it was the duty of appellant to have procured their depositions. Their promise to be present at the trial will not excuse him if they do not attend.
A preliminary motion was made by counsel for respondent to strike from the files a document styled "Reporter's Transcrit of Testimony" for reasons specified in the notice, one of which was that it is not certified by the district judge, or designated by him as having been read or referred to on the motion for new trial, nor agreed to by the attorneys in the case as having been so used.
Practically the same question, and upon the same testimony, was before us in a proceeding in mandamus commenced by appellant against the district judge requiring him to identify this same testimony, or to show cause, etc.
At the hearing in that case the testimony of the district judge was to the effect that the statement had not been agreed to by counsel, and that he had in fact settled it after notice given, and that the testimony here mentioned was not used or referred to on the hearing of the motion for new trial. Testimony tending to support appellant's position was also introduced, but the court held that, as the testimony was conflicting, appellant had failed to establish a clear legal right to the writ, and it was therefore denied. (State v. Mack, page 80,ante.) *228
The purpose of appellant in that proceeding was, and his opposition to this motion is, to make the testimony which the certificate of the district judge impliedly, and his evidence directly, shows was not read or referred to upon the hearing of the motion for new trial, a part of the record on appeal in this case.
By Section 197 of the civil practice act it is made the duty of the judge to settle statements upon motion for new trial which have not been agreed to. Allowing proper credit to the certificate, it appears therefrom that the statement was not satisfactory to the opposite party as originally prepared, and that the judge determined the claims of each side according to the facts, and made the statement conform to the truth.
His certificate that the statement had been allowed by him, and is correct, is the authoritative record in this court, and cannot be impeached by extrinsic evidence. If defective or incorrect, it must be corrected in the district court. (Gardner v. Railway Co.,
At the close of plaintiff's case a non-suit was moved upon the ground that the bill of sale had not been delivered to the vendee; that, therefore, no title had passed, and the suit was prematurely brought. Testimony had been introduced tending to prove that the property described in the complaint had been sold and delivered to the defendant. If there was a condition in the bill of sale or in the agreement of the parties by which title was not to pass except by the delivery of the bill of sale to the vendee, it was a condition favorable to the vendor, and solely for his security in the matter of payment. He could have waived the condition if he chose, and did voluntarily waive it, in fact, by delivering the property to the vendee. The motion was properly overruled.
Numerous exceptions appear in the record as having been taken at the trial to the rulings upon evidence. Those to which importance is attached are cured, if error occurred, by the subsequent admission of the excluded testimony. A telephone message was introduced in evidence from a bank in Reno to the effect that it would honor appellant's check for the sum demanded in the complaint. This evidence had no *229 bearing upon any issue, and should have been excluded, but its admission could have done no possible injury to the appellant.
The exceptions touching the instructions have not been argued, and need not be considered, for the reason that the facts established show that the judgment is so clearly right that it should not be reversed for error, if there were error, in admitting or excluding evidence or the giving of an erroneous instruction.
The action was to recover judgment for $20,246.69, less admitted credits upon a sale of personal property. Appellant admitted the purchase, but defendant upon the ground that respondent had agreed, in connection with the sale, to assign a lease which he had of the Klauber ranch, where the property was; that he had not assigned the lease, and that the property, without the leasehold right, was of little or no value to appellant; that respondent had also agreed to sell none but sound and healthy cattle, and the cattle sold were unsound and unhealthy, and he claimed damages in the sum of $10,000, caused by respondent's interference with the possession of the property.
At the trial respondent contended that he had never agreed to assign the lease of the ranch for reasons which need not be stated, but he had agreed that he would leave the ranch, and appellant could take it, and assume the risk of possession, with the owner of the legal title.
Upon cross-examination appellant himself corroborated this view. He also testified to the correctness of an inventory containing a list of the property, and the agreed price for each item; that he counted the cows, weighed the cheese and butter, estimated the value of the hay, and accepted the property at the prices set opposite the several items; that the price for all was $20,246.69; that respondent never interfered with his possession, except by the attachment by the sheriff for its purchase price.
By these admissions appellant abandoned all defense to the action except as to the condition of the cattle. There was a contention upon this subject, but, conceding all that may be claimed by the evidence, it could not materially affect the verdict. *230
It is ordered that the judgment and order be affirmed. MASSEY, C. J.: I concur.