Browning v. Gosnell

• Decision Date: 26 May 1894
• Citation: 91 Iowa 448,59 N.W. 340
• Parties: BROWNING v. GOSNELL ET AL.
• Court: Iowa Supreme Court

91 Iowa 448

59 N.W. 340

BROWNING

v.GOSNELL ET AL.

Supreme Court of Iowa.

May 26, 1894.

Appeal from district court, Benton county; John R. Caldwell, Judge.

Action on a promissory note. Trial to a jury. Verdict and judgment for defendants. Plaintiff appeals. Affirmed in part, and reversed in part.Chas. I. Vail and W. P. Whipple, for appellant.

G. W. Burnham and Rickel & Crocker, for appellees.

KINNE, J.

This action was brought on a promissory note for $200, dated April 17, 1880, and due October 17, 1880, bearing the signatures of appellees, and payable to F. C. Gosnell or bearer. The suit was brought October 4, 1890, and an original notice issued, requiring defendants to appear at the January term, 1891, beginning on January 5, 1891. As shown by the officer's return, this notice was duly served on all of the defendants. It appears without conflict that the copy of the notice left with defendants Park and Gosnell by the officer cited them to appear and defend on or before noon of the second day of the next term of said court, commencing at Vinton, Iowa, on the 25th day of January, 1891. The term of court in fact commenced on the 5th day of January, 1891, instead of the 25th. January 7, 1891, the default of Park and Gosnell was taken, for want of an appearance, and judgment entered the same day against them. At or prior to the time fixed for their appearance in the copy of notice left with them, Park, with his attorney, Bowen, came to Vinton to make defense to the action, and saw G. W. Burnham, attorney, and found that it was too late,--that court had adjourned. Within eight days thereafter, defendants Park and Gosnell filed a petition to set aside said default, and for a new trial. April 19, 1892, a trial was had on the issues made in such petition, as amended, and the default and judgment set aside. The case was then tried on the merits as to all the defendants. The defense of Gosnell and Park was that after the note was executed, and delivered to the payee, the same was materially altered, by affixing thereto, by the procurement of the payee or Reynolds, the signature of Park and McFarlane without said G. W. Gosnell's consent or knowledge, and that the signature of McFarlane was so affixed without the knowledge or consent of Park; that G. W. Gosnell executed and delivered the note as sole payor, and, without any new or further consideration, the then holder procured the names of Park and McFarlane to be signed thereto. McFarlane, in addition to relying upon the above facts, pleaded that the signature to said note, purporting to be his, was not his genuine signature. Other defenses were made, not material to this appeal. Plaintiff denied generally. On the trial the jury found for all of the defendants, and also made answer to certain special interrogatories, as follows: “1st Int. Do you find that the names of Park and McFarlane were attached to the note in controversy after the same had been executed and delivered by defendant Gosnell to F. C. Gosnell? Answer. Yes. 2d Int. Was there any other consideration paid for the making and execution of said note by Park or McFarlane, if you find he signed same, than that passing from F. C. Gosnell to G. W. Gosnell? Answer. No. 3d Int. Were the names of D. H. Park and John McFarlane attached to said note without the knowledge or consent of G. W. Gosnell, the maker? Answer. Yes. 4th Int. Was the name of John McFarlane attached to said note after same was executed and delivered, without the knowledge or consent of D. H. Park, defendant? Answer. Yes. 5th Int. Did either Park or McFarlane receive any consideration, at any time, for signing said note? Answer. No.” Plaintiff excepted to said interrogatories, when given.

2. It is urged that the court erred in setting aside the default as to Gosnell and Park; that the return of the officer is conclusive. We do not understand it to be claimed by appellant that this court has ever decided that the return of the officer in such a case is conclusive. No case is cited which so holds. The most that has been said is that the return should be “deemed strong evidence of the facts as to which the law requires him to certify, and should ordinarily be upheld, unless opposed by clear and satisfactory proof.” Wyland v. Frost, 75 Iowa, 211, 39 N. W. 241;Irions v. Manufacturing Co., 61 Iowa, 407, 16 N. W. 349;Ketchum v. White, 72 Iowa, 193, 33 N. W. 627. We are not inclined to hold that the officer's return is conclusive in such a case. It is claimed, and we think the evidence abundantly shows, that these defendants were misled, to their prejudice, by the mistake made by the officer in the copy of the notice left with them. In this respect it is unlike Breen v. Kuhn (decided at this term) 59 N. W. 344. They relied upon it, and, for aught that appears, they had a right so to do. Presuming that the date in the copy was correct, they took the proper steps to defend the case. One of them went with an attorney from Carroll county to Vinton, and when they arrived there they ascertained that court had adjourned; that the date in the copy was wrong. It was clearly indicated in Irions v. Manufacturing Co., 61 Iowa, 406, 16 N. W. 349, that such a showing would be a sufficient averment of unavoidable casualty or misfortune. The defense interposed was meritorious, as to both of these defendants. An application to set aside a default is, of necessity, largely addressed to the discretion of the trial court. Jean v. Hennessy, 74 Iowa, 350, 37 N. W. 771; Ordway v. Suchard, 31 Iowa, 487; Manufacturing Co. v. Kleigel, 70 Iowa, 578, 31 N. W. 878. There was no error in setting aside the default.

3. The evidence is clear that, when G. W. Gosnell delivered the note to the payee therein, no other names were signed to it; that there was no agreement or understanding that any other persons' names should be placed thereon. After its execution and delivery the payee or his agent procured Park to sign the note, without the knowledge or consent of Gosnell, the maker. So, also, the name of McFarlane was attached to the note without the knowledge or consent of either the payor or Park. The defenses, then, were fully established as to Gosnell and Park, and the judgment, as to them, must stand, unless there was prejudicial error as to them in the rulings of the court as to the evidence, or in the giving or refusing of instructions.

4. The defendant Gosnell, while a witness on the stand, was asked if he did not state, some time after executing the note, that he had procured Park to sign the note, and thought McFarlane had signed it. The question was objected to as immaterial, irrelevant, and incompetent, as against Park and McFarlane, and because no foundation had been laid for its introduction, and no time and place fixed. The objection was sustained, and plaintiff excepted. It is not claimed by appellant that the proposed testimony would be binding on Park and McFarlane, but it is insisted it was proper as to the witness Gosnell, who was also a defendant. In view of the fact that it is not now contended that the evidence was admissible as against Park and McFarlane, we need only consider the question presented by the part of the objection wherein it is claimed that no foundation had been laid for such testimony. If the purpose of the proposed evidence, as against Gosnell, was to impeach him, by showing that he had made statements out of court in conflict with his testimony in chief, it was necessary to lay the proper foundation therefor by calling his attention to the time and place when and where the statements were made, and this is true even when the witness is a party to the litigation. It is said in Conway v. Nicol, 34 Iowa, 536: “While the declaration, out of court, of a party to the record, may be introduced as an admission of a fact, yet, in order that such declaration may operate as an impeachment of his character as a witness, his attention must be directed to the time, place, and person involved in the supposed contradiction.” The rule seems to be different when the proposed evidence is in the nature of an admission of a party to the record, and it is not intended for impeaching purposes. Lucas v. Flinn, 35 Iowa 14. And see State v. Hamilton, 32 Iowa, 574. The rule in some states seems to be that no foundation need be laid in any case where the witness is a party, and it is sought to show that he has made statements out of court in conflict with his testimony. Collins v. Mack, 31 Ark. 694; Water Co. v. Stewartson, 96 Pa. St. 436; Thomp. Trials, § 497. Whatever may be the rule elsewhere, under the holding in Conway v. Nicol, supra, the testimony, if for the purposes of impeachment, was not proper, as the witness' attention was not called to the time, place, or person involved in the claimed contradiction. Inasmuch as the objection directed especial attention to the fact that defendant construed the question as one seeking to elicit testimony for the purpose of impeachment, and as counsel for appellant did not claim any other effect for it, the court might properly assume that such was its purpose, and hence the objection was rightfully sustained. Had counsel indicated to the court, by the form of the question or otherwise, that the evidence was not for the purpose of impeachment, no doubt the objection, on that ground, would have been overruled. In this...