Frank v. Berry

CourtUnited States State Supreme Court of Iowa
Writing for the CourtLADD
Citation128 Iowa 223,103 N.W. 358
Decision Date04 May 1905
PartiesFRANK v. BERRY.

128 Iowa 223
103 N.W. 358

FRANK
v.
BERRY.

Supreme Court of Iowa.

May 4, 1905.


Appeal from District Court, Linn County; Wm. G. Thompson, Judge.

Judgment for damages, from which defendant appeals. Affirmed.

[103 N.W. 359]

Redmond & Stewart, for appellant.

Grunewald Bros. and Jamison & Smyth, for appellee.


LADD, J.

Plaintiff became the husband of Mrs. Atwood December 25, 1900, and claims to have lived happily with her until early in 1902, when her attitude toward him changed, and, after two temporary separations, he left her in September, 1903. He attributed all his troubles to interference on the part of defendant.

1. Plaintiff recognized nine letters addressed to his wife, and the photograph of another, as being in the handwriting of defendant. These were received in evidence, over objection that his competency had not been shown. As he had only seen the defendant write a receipt and sign his name in a subscription book, the ruling was correct. Hyde v. Woolfolk, 1 Iowa, 159;State v. Farrington, 90 Iowa, 673, 57 N. W. 606;State v. Hall (S. D.) 91 N. W. 325, 65 L. R. A. 151; Elliott on Evidence, § 1100; Greenleaf on Evidence (15th Ed.) § 577; Rogers on Expert Testimony (2d Ed.) § 122. The fact that the witness was not an expert and had enjoyed little business experience went to the weight to be given his testimony rather than to its admissibility.

2. When the photograph of a letter was offered and admitted, objection that it was secondary evidence was not urged. The letter appears in the abstract, and is followed by the statement: “Counsel for plaintiff now reads photographed letter marked ‘Exhibit No. 10.’ ” Thereafter the defendant first raised the above objection, and it was overruled. This was not error, as the photograph was then before the jury, and could not properly have been excluded save on a motion to strike.

3. In one of these letters the writer informed plaintiff's wife that he had procured a box with a key to it, No. 490, and cautioned her to remember the number. The postmaster testified that a man of defendant's name rented a box, being that number at the post office, some time during the same month. As they were corresponding, and he asked in the letter containing the statement that she write, the postmaster's evidence was admissible.

4. The signature of Charles E. Berry attached to the answer was admitted in evidence, over objection, as a standard of comparison with the handwriting of the letters. The statute requires every pleading to be subscribed by the party or his attorney (section 3580, Code), and the court had the right to assume, in the absence of any showing...

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7 practice notes
  • Bearbower v. Merry, No. 60734
    • United States
    • United States State Supreme Court of Iowa
    • May 17, 1978
    ...are plaintiff's consent, defendant's lack of knowledge of the existence of the marriage, and the statute of limitations. Frank v. Berry, 128 Iowa 223, 103 N.W. 358 (1905). A defense of privilege exists in certain circumstances. Koehler v. Koehler, 248 Iowa 144, 79 N.W.2d 791 The only defens......
  • State v. Wickett, No. 45705.
    • United States
    • United States State Supreme Court of Iowa
    • October 21, 1941
    ...673, 677, 57 N.W. 606;Hyde v. Woolfolk and Bacon, supra, 1 Iowa 159, 167;McColl v. Jordan, 200 Iowa 961, 205 N.W. 838; and Frank v. Berry, 128 Iowa 223, 103 N.W. 358. In State v. Farrington, supra [90 Iowa 673, 57 N.W. 607], the court in speaking of a layman witness, who “was somewhat acqua......
  • McBride v. Seaman (In re Olson's Estate), No. 47306.
    • United States
    • United States State Supreme Court of Iowa
    • October 19, 1948
    ...there was an attesting clause in connection with the will, which at least raises a presumption as to its regularity. See, Frank v. Berry, 128 Iowa 223, 103 N.W. 358;Ayrhart v. Wilhelmy, 135 Iowa 290, 112 N.W. 782. IV. We are satisfied also that the court correctly ruled in admitting in evid......
  • In re Repp's Estate, No. 47512.
    • United States
    • United States State Supreme Court of Iowa
    • January 10, 1950
    ...to the jury and they were the judges as between the conflicting statements of the two subscribing witnesses. See, Frank v. Berry, 128 Iowa 223, 103 N.W. 358;Ayrhart v. Wilhelmy, 135 Iowa 290, 112 N.W. 782. Such a clause, reciting the observance of statutory requirements as to the execution ......
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7 cases
  • Bearbower v. Merry, No. 60734
    • United States
    • United States State Supreme Court of Iowa
    • May 17, 1978
    ...are plaintiff's consent, defendant's lack of knowledge of the existence of the marriage, and the statute of limitations. Frank v. Berry, 128 Iowa 223, 103 N.W. 358 (1905). A defense of privilege exists in certain circumstances. Koehler v. Koehler, 248 Iowa 144, 79 N.W.2d 791 The only defens......
  • State v. Wickett, No. 45705.
    • United States
    • United States State Supreme Court of Iowa
    • October 21, 1941
    ...673, 677, 57 N.W. 606;Hyde v. Woolfolk and Bacon, supra, 1 Iowa 159, 167;McColl v. Jordan, 200 Iowa 961, 205 N.W. 838; and Frank v. Berry, 128 Iowa 223, 103 N.W. 358. In State v. Farrington, supra [90 Iowa 673, 57 N.W. 607], the court in speaking of a layman witness, who “was somewhat acqua......
  • McBride v. Seaman (In re Olson's Estate), No. 47306.
    • United States
    • United States State Supreme Court of Iowa
    • October 19, 1948
    ...there was an attesting clause in connection with the will, which at least raises a presumption as to its regularity. See, Frank v. Berry, 128 Iowa 223, 103 N.W. 358;Ayrhart v. Wilhelmy, 135 Iowa 290, 112 N.W. 782. IV. We are satisfied also that the court correctly ruled in admitting in evid......
  • In re Repp's Estate, No. 47512.
    • United States
    • United States State Supreme Court of Iowa
    • January 10, 1950
    ...to the jury and they were the judges as between the conflicting statements of the two subscribing witnesses. See, Frank v. Berry, 128 Iowa 223, 103 N.W. 358;Ayrhart v. Wilhelmy, 135 Iowa 290, 112 N.W. 782. Such a clause, reciting the observance of statutory requirements as to the execution ......
  • Request a trial to view additional results

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