Campbell v. Holland

• Decision Date: 05 January 1888
• Citation: 22 Neb. 587,35 N.W. 871
• Parties: CAMPBELL ET AL. v. HOLLAND.
• Court: Nebraska Supreme Court

22 Neb. 587

35 N.W. 871

CAMPBELL ET AL.

v.HOLLAND.

Supreme Court of Nebraska.

January 5, 1888.

Syllabus by the Court.

The evidence tended to prove that the plaintiff purchased a one-half interest in the property in litigation at a certain date, he then being in possession as agent, and continued in possession until a subsequent date, when he purchased the remaining one-half interest, the question being the bona fides of both of said purchases and sales. Held, that the declarations of the vendor as to his interest in and ownership of said property, made after said purchase and sale, but before the last one, were admissible in evidence for the purpose of impeaching plaintiff's title, but that such declarations, made after the last purchase and sale, were inadmissible.

On an issue of fact as to whether an assignment, or transfer, of property was made to hinder, delay, or defraud creditors, it is competent, where the assignor, or vendor, is a witness to inquire of him whether, in making the assignment, or transfer, he intended to delay or defraud his creditors. See Seymour v. Wilson, 14 N. Y. 567.

The same rule applies to cases where the assignee or purchaser is called as a witness.

The plaintiff, being a witness on his own behalf, was cross-examined as to the source from which he derived the money used in the purchase of the property in litigation, and, having answered that a certain portion of it had been received by him in payment of a loan previously made to his father, an attempt having been made, as well in his further cross-examination as otherwise, to discredit his statement in this behalf, he was permitted to testify, in rebuttal, as to where he obtained the funds out of which said loan was made. Held no error.

On the trial, defendants cross-examined the plaintiff as to certain erasures in his account-books, and a leaf of one of them which appeared to have been torn out; he answered that the erasures had been made by himself, to correct errors, and the leaf torn out, also by himself, because it had been accidentally soiled and rendered unfit for use; defendants afterwards offered said books in evidence, which offer was refused. Held no error.

When, upon the examination or cross-examination of a witness, a certain conversation is drawn from him in evidence, the opposite party will always be permitted to cross-examine or re-examine him, for the purpose of eliciting the whole of such conversation. The scope of such examination is a question peculiarly for the trial court.

The instructions given to a jury must be construed together, and if, when considered as a whole, they properly state the law, it is sufficient. Bartling v. Behrends, 20 Neb. 211, 29 N. W. Rep. 472.

When the law applicable to the pleadings and evidence in a case has already been fully given by instructions to a jury, by the court, on its own motion, it is not error to refuse further instructions.

Where, upon a motion for a new trial, founded on affidavits, all of the material facts contained in such affidavits are contradicted by affidavits in resistance, the judgment of the trial court denying such motion will ordinarily be upheld.

A new trial will not be granted on account of newly-discovered evidence merely cumulative in its character.

Error to district court, Sarpy county; WAKELEY, Judge.

H. D. Travis and E. H. Wooley, for plaintiffs in error.

J. H. Haldeman and Chas. O. Whedon, for defendant in error.

COBB, J.

This was an action in the district court of Sarpy county, by Martin B. Holland against Artemas W. Campbell, sheriff of Sarpy county, and the sureties on his official bond, for levying on, seizing, taking, and carrying away, by the said sheriff, under an order of attachment, issued to him out of the district court of Cass county, in an action therein pending, wherein the Commercial Bank of Weeping Water was plaintiff, and Lawrence Holland and others were defendants, of a certain stock of lumber and building material, alleged to be the property of said Martin Holland, and in his possession. Campbell, the principal defendant, answered, setting up the said order of attachment, alleging that the property set out and described in the plaintiff's petition was then and there the property, goods, and chattels of Lawrence Holland, defendant in said order of attachment, and justifying the taking of said property under and by virtue of said order; also, alleging that, at the time of said levy, the said Martin B. Holland was present, and made no objection to said levy being made, and made no claim whatever, as owner or otherwise, to said property, or any part thereof, so as aforesaid levied upon. Also, that said property, levied on as aforesaid, was, at the time of said levy, the property of said Lawrence Holland, and was not the property of the said Martin Holland at that time, nor ever was the property of said Martin Holland. Also, that whatever pretended claim, title, or ownership that the said plaintiff now asserts, or claims to have, in said property, was derived from the said Lawrence Holland; and that said pretended title was conveyed by said Lawrence Holland to said Martin Holland without consideration, and for the purpose of defrauding the creditors of the said Lawrence Holland, and especially the Commercial Bank of Weeping Water, in whose favor the said order of attachment was issued; that said Lawrence Holland and said Martin B. Holland are brothers, and that said pretended transfer of said property was made from Lawrence Holland to Martin B. Holland by collusion between said brothers, for the purpose of defrauding the creditors of said Lawrence Holland; and that the said Martin B. Holland has, in truth and in fact, no title, ownership, or interest in said property, but that the same was, at the time of said levy, and for a long time prior thereto had been, the property of said Lawrence Holland, etc.

There was a trial to a jury, with a verdict and judgment for the plaintiff. The cause is brought to this court on error by the defendants, who assign the following errors: “ First. The court erred in excluding from the jury the testimony of J. S. Tewksbury and J. M. Roberts, in regard to conversations had by them with Lawrence Holland, about the lumber-yard in controversy, subsequent to the nineteenth day of April, 1886. Second. The court erred in admitting in evidence the testimony of Lawrence Holland ‘that the sale from himself to his brother was an actual, bona fide sale.’ Third. The court erred in admitting in evidence the testimony of Martin B. Holland, ‘that the sale from Lawrence Holland, to himself was made in good faith.’ Fourth. The court erred in excluding from the jury the portions of the day-book and ledger offered by plaintiff in error. Fifth. The court erred in admitting the testimony of Lawrence Holland to the effect that he claimed a defense against the $3,000 note held by the Commercial Bank of St. Louis. Sixth. The court erred in admitting the testimony of J. M. Roberts, J. S. Tewksbury, and Ed. Cooper, on cross-examination, to the effect that Lawrence Holland claimed to have a defense against the $3,000 note held by the Commercial Bank of St. Louis. Seventh. The court erred in admitting the testimony of Martin B. Holland, on rebuttal, as to where he got the money which he claims to have loaned his father in 1885. Eighth. The court erred in giving instructions numbered 3, 5, 6, and 12, asked by defendant in error, and in giving instructions numbered 5, 6, 7, 8, 11, and 12 given by the court on its own motion. Ninth. The court erred in refusing to give instructions numbered 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20, asked by plaintiff in error. Tenth. The court erred in permitting C. O. Whedon, one of the attorneys for defendant in error, to exhibit portions of the day-book and ledger which has been excluded, to the jury while making his argument. Eleventh. There was misconduct on the part of C. O. Whedon, one of the attorneys for defendant in error, in exhibiting to the jury portions of the day-book and ledger which had been excluded from the evidence. Twelfth. There was misconduct on the part of the jury while deliberating upon their verdict in this cause. Thirteenth. There was misconduct on the part of the bailiff who had the jury in charge while they were deliberating upon their verdict in this cause. Fourteenth. The verdict returned by the jury is contrary to instructions numbered 1, 2, 3, 4, 9, and 10, given by the court on its own motion. Fifteenth. The judgment is contrary to the evidence and the law. Sixteenth. The court erred in overruling the motion for a new trial on the ground of newly-discovered evidence. Seventeenth. The court erred in overruling the motion for a new trial.”

Upon the trial, the defendants called J. S. Tewksbury, a witness on their behalf, and put to him the following questions: “ Question. Did you hear the testimony of Lawrence Holland, last night, as to his having any conversation with you, as to placing his property out of his name, and placing the Springfield yard in the name of Martin Holland? Answer. I did not. Q. State whether or not it is a fact that you had a conversation with him upon the train in relation to this matter? (Objected to, because no foundation was laid for this question on the examination of Mr. Holland, and also as immaterial, irrelevant, and incompetent. Sustained.) Q. I will ask you if in the month of March, or thereabouts, you had a conversation with Mr. Lawrence Holland, upon the train on the Missouri Pacific Railroad, about the matter of his placing this lumber-yard out of his hands? A. I don't think that I had, in March. Q. I will ask you if at any time, upon the train, you had a conversation with him upon that matter? A. There was a conversation in regard to the lumber-yard; it was some time in April. Q. by the Court. Where? A. On the train, on the Missouri Pacific Railroad, between Springfield and Omaha....