Carney v. Duniway

• Citation: 57 P. 192,35 Or. 131
• Parties: CARNEY v. DUNIWAY et al.
• Decision Date: 22 May 1899
• Court: Supreme Court of Oregon

57 P. 192

35 Or. 131

CARNEY v. DUNIWAY et al.

Supreme Court of Oregon

May 22, 1899

Appeal from circuit court, Multnomah county; Henry E. McGinn, Judge.

Action by W.W. Carney against H.R. Duniway and another. From a judgment for plaintiff, defendant the Brower & Thompson Lumber Company appeals. Reversed.

This is an action against H.R. Duniway and the Brower & Thompson Lumber Company, a private corporation, to recover on four certain promissory notes, aggregating in amount about the sum of $17,000, made by the defendant Duniway and indorsed before delivery, "Brower & Thompson Lumber Co., by E.H Thompson, Manager." The complaint after alleging the making of the notes by Duniway, and the incorporation of the Brower & Thompson Lumber Company, avers that the corporation "for a valuable consideration to it paid, duly indorsed" such promissory notes, "and then and there promised and agreed to pay the same at maturity." Duniway made no defense to the action, and a judgment by default was rendered against him. The Brower & Thompson Lumber Company answered, denying, among other things, that it indorsed the notes in question for a valuable consideration or at all, and affirmatively alleged that such pretended indorsement was made without its authority by E.H. Thompson its manager, for the mere accommodation of the defendant Duniway, and without consideration. The reply put in issue the affirmative allegations of the answer, and, among other things, alleged that all the stock of the Brower & Thompson Lumber Company, except a small number of shares, was owned and controlled by Duniway and Thompson, and that the notes in suit were given for money advanced by the plaintiff to Duniway for the use and benefit of the defendant corporation and the Duniway Lumber Company. The trial resulted in a verdict and judgment for plaintiff against the Brower &amp Thompson Lumber Company, from which it appeals, assigning as error the overruling of its motion for a nonsuit made at the close of the plaintiff's testimony.

J.V. Beach and G.H. Durham, for appellant.

Joseph Simon, for respondent.

BEAN J. (after stating the facts).

Before proceeding to a consideration of the merits, it is necessary to dispose of a preliminary question of practice, which it is insisted by the plaintiff's counsel will, when correctly determined, require an affirmance of the judgment without further examination. The bill of exceptions contains all the evidence given prior to the motion for a nonsuit, but does not affirmatively show that no evidence was introduced after the motion was overruled. The plaintiff contends that a defendant waives his motion for a nonsuit by proceeding with his defense and putting in testimony in his own behalf after the motion has been overruled, and it will be presumed that such proceeding was had in this case, in the absence of an affirmative showing to the contrary, but, if this is not so, then, inasmuch as the court will not review the ruling on a motion for a nonsuit where the defect in the plaintiff's case has been cured by subsequent testimony ( Bennett v. Express Co., 12 Or. 49, 6 P. 160), it will be presumed, where the record is silent, that such testimony was introduced after the motion was overruled. The rule in the federal and some of the state courts is that a motion by a defendant for an involuntary nonsuit or for a verdict in his favor is waived by the subsequent introduction by him of testimony in the further progress of the case. Railway Co. v. Cummings, 106 U.S. 700, 1 Sup.Ct 493; Railroad Co. v. Hawthorne, 144 U.S. 202, 12 Sup.Ct. 591; Insurance Co. v. Smith, 124 U.S. 405, 8 Sup.Ct. 534; Bogk v. Gassert, 149 U.S. 17, 13 Sup.Ct. 738; Elliott, Gen.Prac. § 881. But such has never been regarded as the rule in this state, nor do we think it ought to prevail where the statute provides, as it does here, that a judgment of nonsuit may be given on motion of the defendant "when upon the trial the plaintiff fails to prove a cause sufficient to be submitted to the jury." Hill's Ann.Laws, § 246. The supreme court of the United States holds that the federal courts have no power to order a nonsuit without the plaintiff's acquiescence. Elmore v. Grymes, 1 Pet. 469; Crane v. Morris, 6 Pet. 598; Silsby v. Foote, 14 How. 218; Castle v. Bullard, 23 How. 172. And in many states the rule is the same. 16 Am. & Eng.Enc.Law, 733. Where this doctrine prevails, the practice, when the plaintiff fails to make out his case, is for the defendant to move the court to direct a verdict in his favor; and although, as said by Mr. Justice Field in Oscanyan v. Arms Co., 103 U.S. 261, the difference between such a motion and one for a nonsuit is in many respects "rather a matter of form than of substance," yet it is sufficient to distinguish the practice where it prevails from what it should be under statutes similar to ours. Under our statute the defendant is entitled to an involuntary nonsuit, as a matter of right, if the plaintiff fails to prove a cause sufficient to be submitted to the jury; and, in our opinion, he does not waive his motion by subsequently offering evidence in his own behalf, any more than he waives other points ruled adversely to him by proceeding with the trial. Nor do we think the court can indulge in any presumption that the error in overruling such motion was thereafter cured, unless it is made affirmatively so to appear. It is true, a general presumption obtains, in all legal proceedings, that a judicial tribunal acts according to law, and an appellant is required to rebut this presumption by showing clearly and affirmatively from the record that there is error in the proceedings sought to be reviewed. He must overcome every reasonable intendment in favor of the regularity of such proceeding, and when a material fact, necessary to establish error, is omitted from the record, the presumption on appeal is that it would have sustained the decision if included. It has accordingly been held that allowing a husband to testify to a conversation with his wife was not reversible error, in the absence of an affirmative showing that she did not consent to such testimony, either directly, or by offering herself as a witness ( Long v. Lander, 10 Or. 179); and, again, that the court would presume that evidence was given on the trial to warrant an instruction, if the record is silent (State v. Lee Yan Yan, Id. 365). It is because of this presumption in favor of the regularity of the proceedings of the court below that it has been the uniform holding of this court, on an appeal from a judgment where the overruling of a motion for a nonsuit is assigned as error, that the court will presume, in favor of such judgment, that there was evidence sufficient at the time the motion was made to carry the case to the jury, although not shown in the bill of exceptions, unless the record affirmatively shows the contrary. Woods v. Courtney, 16 Or. 121, 17 P. 745; Roberts v. Parrish, 17...