Chew v. O'Hara

• Decision Date: 15 December 1899
• Citation: 110 Iowa 81,81 N.W. 157
• Parties: CHEW v. O'HARA ET AL.
• Court: Iowa Supreme Court

110 Iowa 81

81 N.W. 157

CHEW

v.O'HARA ET AL.

Supreme Court of Iowa.

Dec. 15, 1899.

Appeal from district court, Mahaska county; D. Ryan, Judge.

Action for damages in three counts. In the first count it is charged that, by duress and threats, defendants wrongfully extorted from plaintiff the sum of $1,000. The second count charges a conspiracy between defendants to wrongfully extort money from plaintiff, and avers that pursuant thereto said defendants illegally restrained plaintiff, and by threats compelled him to turn over to them $1,000 of money belonging to him. The third count is substantially the same as the second. By an amendment to his petition, plaintiff makes the charge of conspiracy a part of the first count of his petition. The answer is, first, a general denial. It is then averred that the firm of F. P. O'Hara & Co. was engaged in the grocery and queensware business in the city of Oskaloosa, and that for several years prior to March 25, 1893, plaintiff had been in its employ as a clerk; that said firm became aware that money and goods were being feloniously taken from its store; that from time to time it was informed by reliable persons of facts and circumstances which led its members to believe that plaintiff was the guilty person; that on March 24, 1893, some money was taken from the store, and from all the circumstances, and from information, defendants' members became satisfied plaintiff had stolen the sum; that on March 25, 1893, they informed plaintiff of the facts which had come to their knowledge, and of their belief that he had taken the money which had from time to time disappeared from the store; that, upon such charge being made, plaintiff at once proposed to pay, and did pay, in full settlement and compromise of such claim, the sum of $1,000, which was much less than defendants' loss. There was a trial to jury on these issues, which resulted in a verdict for defendants. Plaintiff appeals. Affirmed.J. B. Bolton, Geo. W. Lafferty, and Byron W. Preston, for appellant.

L. C. Blanchard, for appellees.

WATERMAN, J.

The first question raised is on the bill of exceptions. Within the time allowed therefor a bill of exceptions was signed by the judge who presided at the trial, but as he refused to incorporate in it some matters which plaintiff claimed occurred between the judge and the jury, when that body was called into court during its deliberation on the verdict, plaintiff procured another bill to be signed by two court bailiffs, who claim to have been bystanders, setting out those particular facts according to their version. We find the matter contained in the bill signed by the bystanders differs materially from that which was set forth in the one to which the judge refused his signature. Bystanders cannot certify a bill of exceptions, unless the judge has refused to do so. The bill which they sign must show affirmatively that the judge has refused to indorse the correctness of its statements. Section 2835, Code 1873. The bill signed by the bystanders must be disregarded, and in making this disposition of it we dispose, also, of the claimed errors founded upon remarks by the court to the jury, when it was called in during its deliberations. No such matter appears in the bill signed by the judge.

1. We take up now the various errors in the order in which they are discussed. Plaintiff, the defendants, one Cowgill, and Mr. Lacey, an attorney, were in a room in the court house together at the time when it is claimed the wrongful acts were done upon which this action is based. Plaintiff testified that he was told at that time by some of the defendants that Lacey was not brought there as an attorney, but as a friend of the plaintiff. He was then asked by his counsel, “When you talked with Mr. Lacey, in that room, did you consider him there as between the parties? An...