Boydan v. Haberstumpf

• Decision Date: 21 December 1901
• Citation: 129 Mich. 137,88 N.W. 386
• Court: Michigan Supreme Court
• Parties: BOYDAN v. HABERSTUMPF et al.

88 N.W. 386

129 Mich. 137

BOYDAN v. HABERSTUMPF et al.

Supreme Court of Michigan

December 21, 1901

Error to circuit court, Ionia county; Frank D. M. Davis, Judge.

Action by Minnie Boydan against John Haberstumpf and others. Judgment for plaintiff, and defendants bring error. Reversed.

V. H. & H. H. Smith, for appellants.

John Nichols (George E. Nichols, of counsel), for appellee.

MONTGOMERY C.J.

This is an action against a saloon keeper and his bondsmen to recover damages for illegal sales to the plaintiff's husband. The record contains 109 assignments of error, which, it is safe to say, is at least 100 more than raise any doubtful questions. Undoubtedly, counsel have a legal right to indulge in as many assignments of error as they choose; but, when error is assigned upon every ruling of the court in the progress of a trial, it imposes upon the appellate court the burden of practically retrying the entire case, and reviewing every ruling upon the admission of testimony, and every argument of counsel or statement of the court during the trial. Such practice is not to be commended. A careful examination of the case before assigning error, we think would have satisfied the counsel for the defendants that the circuit judge was not always wrong. We conceive it to be the duty of counsel to sift out the chaff from the grain to some extent, and not to impose that duty upon this court.

There is error in the case, and it must be reversed. The plaintiff while a witness on the stand, was permitted to testify that she had a yound child, some three years old which child was in the court room at the time, and remained during the trial; and counsel, in arguing to the jury, dwelt upon this fact. This was error, within the ruling of this court in Larzelere v. Kirchgessner, 73 Mich. 276, 41 N.W. 488. It is true, the court, later on, struck out this testimony, and attempted to cure the error in submission by his charge. But we are not satisfied that the error was without prejudice.

The defense offered in evidence a receipt, and testimony showing that the plaintiff was paid $10 to compromise her claim against the defendant. This was a complete defense, unless the plaintiff was able to show some duress or fraud in effecting the settlement.

The circuit judge charged the jury, in substance, that this settlement was binding unless the plaintiff had overcome the presumption of its validity by showing fraud or duress. Among the testimony offered to show duress was that of the plaintiff, to the effect that three different parties came to her and told her that defendant had threatened to have her arrested as a common prostitute unless she should discharge her claim against him. This...