Hardman v. Lasell
| Citation | 225 N.W. 301,55 S.D. 176 |
| Decision Date | 07 May 1929 |
| Docket Number | 6435. |
| Parties | HARDMAN v. LASELL et al. |
| Court | Supreme Court of South Dakota |
Appeal from Circuit Court, Day County; J. J. Batterton, Judge.
Action by the First National Bank of Waubay against Silas T. Lasell and others, in which Harry Hardman, as receiver of the bank was substituted as plaintiff. From a judgment for plaintiff and an order overruling a motion for a new trial, defendants appeal. Affirmed.
M. C Lasell, of Aberdeen, and L. H. Woodworth, of Webster, for appellants.
C. C. Bush, of Waubay, and Howard Babcock, of Sisseton, for respondent.
After commencement of this action the respondent, Hardman, became receiver of the First National Bank of Waubay, which bank will be herein referred to as plaintiff and respondent. The suit was to quiet title to a certain residence property in Waubay, and for specific performance of a contract under which plaintiff claims to be entitled to deed. The defendants joined in the suit, and served with process, may be referred to as Bowler, Herold, and Lasell. Bowler and Herold defaulted. Lasell joined issue, defended the case, and from an adverse judgment, and order overruling motion for a new trial, he appeals.
The rights of respondent below are based upon a contract for deed made by Bowler as vendor to Herold, and assignment of the contract by Herold to respondent bank. At all times material to this case the legal title to the property stood in the name of Lasell, who claims to be its exclusive owner. The theory of respondent's proof, accepted by the trial court as sufficient to support the judgment, was that Bowler, the vendor in the contract of sale, and Lasell, appellant, were partners or in joint venture in the ownership of, and in the right to dispose of, the property. Proof of the rights of Bowler in the property, necessary to support respondent's judgment, rests largely on the testimony of Bowler, which was taken by the plaintiff before trial, under Rev. Code 1919, § 2715. The date of the order for examination is stated contradictorily in the record. The examination was had November 7, 1925, and, of the examination, Lasell was given one day's notice, according to a provision in the order. The notice given Lasell appears to have been in the form of a joint subpoena for the appearance, at the specified time, of both Bowler and Lasell as witnesses adverse to plaintiff, together with copy of the order, as we infer from the record and from statements of counsel in oral argument. At the time of trial, Bowler was out of the state, and the reason for taking his testimony as an adverse party before trial, and upon one day's notice to Lasell, seems to have been that plaintiff's attorneys were waiting an opportunity to subpoena Bowler within the state at a time when the presence of both a referee and reporter could also be had. Lasell attended at the time of the examination of Bowler, with his brother, an attorney at law, who was not, however, the regular counsel of Lasell in this or in certain associated litigation.
The appellant Lasell first complains that the testimony of Bowler, so taken by plaintiff as an adverse party before trial, was not admissible at the trial, because Bowler had defaulted as a defendant, and because his interests were identical with plaintiff under the issues; in short, that Bowler was not a real adverse party to plaintiff. Whether the mere fact of the joinder of Bowler as a defendant entitled the plaintiff to cross-examine him, or whether his personal interest, in the issues covered by the examination, should control, it is unnecessary to decide. The testimony adduced was lawful and competent, and material so far as it tended to prove or disprove issuable facts. The circumstance that plaintiff bank adduced that proof in the manner of cross-examination in this particular case was without any prejudice to appellant, the codefendant of Bowler. The chief distinction between such an examination, and ordinary direct examination, by plaintiff, would have been that plaintiff, in the one case, was not bound by the testimony of the witness and could refute the same. Neither that fact, nor any other circumstance peculiar to cross-examination, can form the basis for any prejudice to the appellant Lasell so far as the record of this appeal is concerned.
It may also be said that the order of the trial court allowing examination by one party of another, as an adverse party under section 2715, is, in effect, a ruling that the party to be examined is such an adverse party. So long as that ruling, in the form of a court order, is not appropriately questioned, as by motion to vacate, or to suppress the testimony, or by objections timely filed under section 2771, it is not subject to review. Assuming, without deciding, that the privilege of cross-examination before trial, under section 2715, may not be abused by the deliberate joinder of complete strangers to the suit, or of persons actually interested with the examining party, for the mere purpose of cross-examination, that objection should be timely directed, by appropriate procedure, to the ruling of the court under which the examination is had, and not made for the first time when the proof is offered in trial.
But appellant complains that the court could not lawfully permit or authorize an examination on one day's notice to the appellant Lasell. Section 2715 reads in part: "The examination provided for in the preceding section may be had at any time before the trial, at the option of the party claiming it, before a judge of the court or a referee appointed for that purpose by a judge of the court, upon six days' notice to the party to be examined and any other adverse party, unless, for good cause shown, the court order otherwise."
It is clear that, on good cause shown, the examination could have been permitted on less than six days' notice to Lasell, as a party adverse to plaintiff. In oral argument, appellant suggested that such cause did not exist. But neither the order, nor the affidavit on which it was based, is in the printed record. Error may not be presumed on appeal. As the court might rightfully shorten the time of notice to one day, on good cause shown, it must be presumed that the proper showing was made, especially where other facts, shown in the record, appear to suggest, rather than refute, the existence of good cause for a short day.
The order appointing the referee and permitting the examination was apparently made October 20, 1925. It is an order which may be obtained ex parte. Niblo v. Ede, 39 S.D. 338 164 N.W. 109. It inferentially appears that the order did not indicate the time of examination, due to the fact that Bowler was not in the state, and that it was left to the referee by subpoena to fix that date, when the presence of the party, with the referee and reporter, might be obtained. Respondent points out that the appellant was present at the time of Bowler's examination with a brother who was an attorney; that a full opportunity existed in appellant and his attorney to examine the witness, if they chose, or if it was desired to obtain another attorney to conduct such examination. It might...
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