Leach v. Nelson

• Decision Date: 22 January 1924
• Citation: 196 N.W. 755,50 N.D. 538
• Parties: LEACH v. NELSON et ux.
• Court: North Dakota Supreme Court

50 N.D. 538

196 N.W. 755

LEACH

v.NELSON et ux.

Supreme Court of North Dakota.

Dec. 8, 1923.

Rehearing Denied Jan. 22, 1924.

Syllabus by the Court.

On the second trial of a cause, where the parties are the same and the issues identical with those on the first trial, testimony of witnesses taken on the first trial is admissible, when such witnesses are inaccessible and their attendance cannot be procured.

Where testimony taken at a former trial is admissible and used in a later trial by reason of the inaccessibility of a witness, objections not taken on the first trial may not be interposed on the second.

The contract by which a grantee assumes the payment of existing incumbrances on realty is separate and distinct from the conveyance. Such a contract may be embodied in the deed, it may be by separate writing, or it may rest entirely in parol. Moore v. Booker, 4 N. D. 543, 62 N. W. 607.

The determination of whether or not misconduct of counsel on the trial of a case is prejudicial is in the first instance for the consideration and rests largely in the discretion of the trial court, and a party complaining of such misconduct must afford the trial court an opportunity to exercise such discretion and pass upon the effect of such misconduct, and, not having done so, he cannot predicate error on account of the same on appeal.

Appeal from District Court, Ramsey County; W. J. Kneeshaw, Judge.

Action by H. H. Leach against A. L. Nelson and wife. From a judgment for defendants, plaintiff appeals. Affirmed.A. E. Wheeler, of Devils Lake, and Middaugh, Cuthbert & Smythe, of Duluth, Minn., for appellant.

Flynn, Traynor & Traynor, of Devils Lake, for respondents.

NUESSLE, J.

This is the second appeal of this case. The opinion in the former case is reported in (N. D.) 189 N. W. 251. The law of the case was laid down in that opinion. The facts on the present appeal are substantially identical with those on the former. Immediately prior to the second trial, which was had to a jury, the defendants asked for leave to amend their answer. Over objection leave was granted. However, on the trial the court sustained the plaintiff's objection to all evidence sought to be offered under the amendment, so that the issues of fact on the second trial were identical with those as made and determined on the first trial. On the second trial the defendants had a verdict. From the judgment entered thereon the plaintiff appeals.

The appellant assigns some 76 errors. He predicates error on account of the admission or rejection of evidence offered; on account of alleged misconduct of the respondents' counsel; and by reason of instructions given to the jury.

[1] The testimony offered by the respondents on the second trial was substantially that offered on the first trial. Two of the witnesses who were present and testified at the first trial were inaccessible, and were not present at the second trial. So their testimony as given at the first trial was introduced. The appellant, when this testimony was read, in addition to the objections taken on the first trial, interposed other and additional objections, some of which were well grounded, and doubtless would have been sustained had they been taken in the first instance. The trial judge, overruling such objections, stated as reasons for his ruling:

“* * * It appearing that this is a transcript of the evidence given on a former trial, in which these same attorneys appeared, and there was no objection made at that time. You had an opportunity to make an objection at the former trial, and failed to do so.”

And again, when ruling, the trial judge said:

“The court concedes that some of these questions were vulnerable to objection on certain grounds, if an objection had been made when the evidence was introduced. It appears that the attorneys in this case were present at the former trial, and made no such objection, and it is too late at this time to object to that evidence under the circumstances of this case. The objection is overruled.”

There was no objection to reading in evidence the testimony taken at the former trial; all parties apparently agreeing that the same was admissible on the showing as made that the witnesses were beyond the jurisdiction of the court.

Appellant, however, contends that the issues on the second trial were not the same as those on the first by reason of amendments allowed by the trial court. It is true that an amendment was allowed to the second paragraph of the answer. But, when in the course of the trial respondents sought to introduce evidence in support of the matters pleaded in this amendment, objections interposed thereto were sustained and the evidence rejected. Thus, in fact, the case was tried and submitted on the identical pleadings and issues as made on the first trial, and the parties were the same. It is true that on the second trial the appellant may have had a different theory of law, but we do not believe that on the record that fact alone justifies the contention that the issues were different.

[2] Appellant further contends that the same rule applies to evidence of this character that applies to depositions as regards exceptions on the grounds of incompetency and irrelevancy, and that, under section 7906, C. L. 1913, providing, “exceptions to a deposition on the ground of incompetency or irrelevancy may be made at the time the same is offered in evidence; other exceptions to a deposition must be made in writing, specifiying the grounds of objections and filed in the cause before the commencement of the trial,” objections on the grounds of incompetency or irrelevancy may be made at the time the deposition is offered in evidence. We need not here consider the rule prescribed by section 7906, supra, or its practical application. It is sufficient to say that appellant is mistaken in his contention. The evidence in question was not a deposition. It was admissible, regardless of the statutory provision as to the taking and admission of depositions. It was taken under oath on a former trial, the parties and issues were identical, the plaintiff was given full opportunity to cross-examine and to interpose such objections as he saw fit. See State v. McCarty (N. D.) 194 N. W. 335, and authorities cited; Felton v. Midland Continental Railway Co., 32 N. D. 223, 155 N. W. 23, and cases cited; Robertson v. State, 63 Tex. Cr. R. 216, 142 S. W. 533, Ann. Cas. 1913C, 440, and note; Smith v. State of Georgia, 147 Ga. 689, 95 S. E. 281, 15 A. L. R. 490, and note; Edgeley v. Appleyard, 110 Me. 337, 86 Atl. 244, Ann. Cas. 1914D, 474, and note; Jones' Commentaries on Evidence (Horwitz) § 336 et seq. Where testimony taken at a former trial is admissible and used in a later trial by reason of the inaccessibility of a witness, objections not taken...