Farwell v. Cramer

• Decision Date: 17 October 1893
• Citation: 56 N.W. 716,38 Neb. 61
• Parties: FARWELL ET AL. v. CRAMER.
• Court: Nebraska Supreme Court

38 Neb. 61

56 N.W. 716

FARWELL ET AL.

v.CRAMER.

Supreme Court of Nebraska.

Oct. 17, 1893.

Syllabus by the Court.

1. For a party to object to a question not (standing by itself) material, and then to withdraw the objection when the other party promises to supply the link in the evidence which would make it material, is not misconduct entitling the defeated party to a new trial.

2. Nor is it misconduct for the defeated party to move upon the close of the evidence that the jury be permitted to take all the documents offered in evidence with them to the jury room, the record not disclosing that the motion was made in such language, or under such circumstances, as to warrant the inference that it was made for effect upon the jury, and not in good faith.

3. A married woman may, in this state, bargain for and purchase personal property, sell the same, and do all acts in relation to such property as though she were single.

4. There is no presumption of law that personal property in the possession of the wife while living with her husband belongs to the husband. Oberfelder v. Kavanaugh, 45 N. W. Rep. 471, 29 Neb. 427, followed.

5. Two conflicting instructions in regard to the burden of proof are not prejudicially erroneous, where the verdict was against the party upon whom the burden was properly imposed.

6. This court will not review upon error the rulings of the district court excluding or admitting testimony, unless the error complained of is specifically assigned in the petition in error with such certainty as to enable the court, upon examination of the record, to ascertain the particular error complained of.

Commissioners' decision. Error to district court, Holt county; Norris, Judge.

Action in replevin by Christena A. Cramer against Simeon Farwell & Co. and others. Plaintiff had judgment, and defendants bring error. Affirmed.H. M. Uttley, for plaintiffs in error.

M. F. Harrington, for defendant in error.

IRVINE, C.

D. L. Cramer was engaged in the mercantile business in Ewing. He seems to have failed, and his stock of goods was seized and sold upon attachments or executions. The defendant in error, the wife of D. L. Cramer, was at that time conducting a millinery establishment, and some time after the sale of Mr. Cramer's stock she moved her millinery goods into the store room formerly occupied by Mr. Cramer, and shortly after began to add other lines of merchandise thereto, until in the course of a few weeks she seems to have established what is termed a “general store.” The plaintiffs in error, who were judgment creditors of Mr. Cramer, caused executions to be levied upon all the goods except the millinery stock, upon the theory that the goods in fact belonged to Mr. Cramer, while the business was being conducted in the name of his wife, for the purpose of defeating his creditors. Mrs. Cramer instituted the present action in replevin against the sheriff, for whom the judgment creditors were substituted as defendants. There was a verdict and judgment in favor of Mrs. Cramer, which the creditors seek to reverse.

Numerous errors are assigned. The first is misconduct of plaintiff's counsel. In support of this assignment attention is first called to the following circumstance: It was a part of the creditors' theory that when Mr. Cramer failed he in some way secreted from his creditors certain notes and accounts, and that the goods in question were purchased with the proceeds of these assets. A witness was interrogated in regard to these notes and accounts, and, upon the objection made, an offer was made to prove that notes and accounts to the amount of $10,000 had been by Cramer “taken out of his business,” and that he had them in his possession after the attachments were levied. The court then stated that the objection was sustained, unless the defendant “could trace the accounts or connect them.” Thereupon counsel stated that he would agree to attempt, and believed he could, connect these accounts and their proceeds with the plaintiff as having passed directly into her hands for his use and benefit. Opposing counsel then waived their objection, and the questions were answered. In what way this transaction can be construed as misconduct on the part of counsel is beyond our comprehension. The evidence offered was immaterial, unless the accounts or their proceeds were in some way traced into the goods. It was quite proper for the court to require an offer to so trace them before admitting the evidence, and when that offer was made it was the proper course for plaintiff's counsel to withdraw their objections. The bill of exceptions shows that at the close of the testimony the plaintiff asked that all the books, exhibits, and records be taken by the jury to their jury room, to be considered by them. Counsel moved to strike out this remark as incompetent, and an unfair way of trying a case. This motion was overruled. It does not appear that the jury was permitted to take these documents, or that plaintiff's motion was ever acted upon. It was not misconduct entitling the party to a new trial for the adverse counsel to make a motion which should not be sustained. The record does not show that the language of counsel was unbecoming or unfair, and, the remark having been made, the court was right in refusing to strike it from the record. It is claimed that throughout the trial counsel for plaintiff, in side remarks to the jury, insinuated that they were anxious that the jury should examine the books during their retirement. Nothing of this kind appears in the bill of exceptions. It is, however, intimated in the brief that the court refused to permit the reporter...