Carlton v. Carey
| Decision Date | 17 May 1901 |
| Docket Number | 12,553 - (81) |
| Citation | 86 N.W. 85,83 Minn. 232 |
| Parties | ISABELLA J. CARLTON v. JOHN R. CAREY |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for St Louis county, Dibell, J., denying a motion for a new trial. Affirmed.
Memorandum -- Evidence.
Assuming that an entry or memorandum made in a book or in some other form, in the usual course of business, and at or about the time of the transaction, by a person not a party to the action, who is shown to have had personal knowledge of the facts recorded, is competent evidence of the fact at the trial of an action, it is held that the book or memorandum offered in evidence in this instance was not brought within the rule.
Value of Stone -- Evidence.
Held further, that there was no testimony reasonably tending to show the amount or value of certain stone alleged to have been removed from the land in question with the consent of the original defendant.
J. W. Bull and J. B. Richards, for appellant.
A. L. Agatin, for respondent.
For the third time this case appears in this court. Originally, the action was brought to cancel and set aside a foreclosure proceeding based on a mortgage upon eighty acres of land belonging to the plaintiff. She was successful in the court below, but on appeal by defendant this court required as a condition that she reconvey to defendant certain lots which had entered into the original transaction, and pay to him a certain amount of money. Carlton v. Hulett, 49 Minn. 308, 51 N.W. 1053. It afterwards appeared that plaintiff's attorney in fact had conveyed certain of the lots mentioned, and therefore that she was unable to comply with the mandate as to a reconveyance. The defendant Hulett had deceased pending the litigation, and upon the substitution of Carey, administrator, as defendant, the court below amended its conclusions of law, and again ordered judgment in plaintiff's favor. On appeal from the judgment this court set it aside, and remanded the case, with certain plain and definite directions as to further proceedings, which, if obeyed, would have then and there terminated the litigation. See Carlton v. Carey, 61 Minn. 318, 63 N.W. 611. The case is now before us on new issues and new facts wholly disconnected from the matters adjudicated and settled by the former appeals. These new matters seem to have been injected into the action several years after the last-mentioned decision, and in absolute disregard of the mandate then sent down. They were brought about by the filing of a supplemental complaint, an answer thereto, and a reply, without any opposition to the framing of new issues, and apparently by consent of both parties. No objection was taken to the making of new issues until the case was brought on for trial by the court without a jury, and then an amendment was made to the answer, in which amendment was set forth the legal effect of the mandate already mentioned. It was then argued for the first time, as we read the record, that the mandate should have been strictly obeyed, and that the court below was powerless to allow new issues to be framed and another trial had thereon. We quite agree with the court below that, although all that had transpired since the remittitur was irregular and unwarranted, it was best under the circumstances for it to hear the proofs, and render its findings and conclusions. By failing seasonably to object to the making of new pleadings and the creation of new issues, defendant's counsel really consented to the irregularity which has crept into the case, and to an unauthorized trial on the facts. We will therefore consider the merits of an order denying plaintiff's motion for a new trial.
1. It is contended by the plaintiff's counsel that it was error for the court below to sustain an objection to the introduction in evidence of the so-called "ledger." This ledger has not been exhibited to this court, and we have no means of knowing its contents. We cannot tell what bearing these contents had upon the issues, or whether they were in point, or, taken as a whole, were at all material at the trial. Assuming, however, that the contents of the book were pertinent and admissible in a proper case, and, if this controversy was between parties legally affected thereby, the court was clearly right in its ruling. This particular dispute was over the amount of stone which had been taken from part of the mortgaged premises by Hulett's permission, and under his lease to a man named Glass.
It appeared in evidence that Glass, who personally worked the quarry, kept a small day or memorandum book, in which he entered the height, length, width, and quality of each car of stone as loaded upon cars standing upon the side track. He also entered in this book, which was kept in the quarry, the name of the party to whom the stone was to be shipped. Each night he carried it to the witness Gasper, who was not at the quarry, but kept a store near by. Gasper then figured...
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