Brown v. Gray

• Decision Date: 16 December 1920
• Docket Number: 31102
• Citation: 180 N.W. 162,190 Iowa 252
• Parties: E. E. BROWN, Appellant, v. E. E. GRAY et al., Appellees
• Court: Iowa Supreme Court

180 N.W. 162

190 Iowa 252

E. E. BROWN, Appellant, v. E. E. GRAY et al., Appellees

No. 31102

Supreme Court of Iowa, Des Moines

December 16, 1920

Appeal from Pottawattamie District Court.--THOMAS ARTHUR, Judge.

THE controlling controversy is over the existence of a partnership. The verdict found there was no partnership, and plaintiff appeals.--Reversed and remanded.

Reversed and remanded.

Kimball & Peterson and H. L. Robertson, for appellant.

Mayne & Green, Thomas Q. Harrison, and William Mulvaney, for appellee.

OPINION

SALINGER, J.

I.

Proposition 5 contains this statement:

"The court erred in admitting in evidence each item and particle of testimony objected to by the plaintiff over the objection of the plaintiff, and to which the plaintiff excepted. That the said admission of evidence was prejudicial error." This is utterly too general for consideration, and many of our decisions so hold.

1-a

One proposition is:

"The court erred in sustaining objections of the defendant to the testimony of plaintiff, Brown, called in rebuttal for further examination in chief, to further testify on the issue of estoppel, as presented by the issues in this action; that said matters of testimony had not been fully covered by plaintiff on his case in chief, because of misunderstanding; that, therefore, the lower court abused its discretion in refusing to permit plaintiff to testify; that the testimony was material, and the error of the court prejudicial; and that, though the power of the court in admitting such testimony is discretionary, the abuse thereof is a ground for reversal; and that the Supreme Court is more likely to interfere when a request to reopen a case for additional testimony has been denied."

Nowhere--at least nowhere in the propositions or in the error points--is it said in terms that such a request was made or was denied. If it exists in the record, proof of it may be found on some page or pages of the abstracts. We are not required to go through them to ascertain whether an assertion which makes no reference to pages of the abstract is sustained by the record. Therefore, and on the authority of Wheeler v Schilder, 183 Iowa 623, 167 N.W. 534, we decline to give this point further consideration.

1-b

The same must be the rule in dealing with the sixth proposition, which is:

"A witness should not be asked to give his opinion or conclusion as to a matter which must ultimately be determined by the jury."

What witness was asked to do this? Where is the inquiry to be found? Only by searching the abstracts can we learn whether anyone was asked to do this thing, and what was done about it.

1-c

In like case is the abstract declaration of Proposition 10, as follows:

"When knowledge, belief, or intention is a material fact, the party may testify thereto, as any other fact."

And is likewise Proposition 7, that, if error in the admission of evidence appears, it must be affirmatively shown to be without prejudice, to warrant its being disregarded.

II. The plaintiff offered in evidence Exhibit G2. It is the assessment roll of L. Florine, signed and certified by him on February 17, 1914. It does not list any notes or loans to E E. Gray, or to anyone. After Florine had identified this assessment roll, the same was excluded, on the motion of defendant, and under exception by plaintiff. The brief for appellee says nothing in explanation or justification of this ruling. It seems to us to have been relevant matter. It was admissible for whatsoever things present in or absent from it tended to show. We think it was a relevant fact that, in this verified statement to the assessor, Florine did not claim to have made any loans, nor to have any notes. It had some substantial bearing on what the true relations between Florine and Gray were,--whether debtor and creditor, or partner. It should...