Lillienthal & Co. v. Anderson

• Decision Date: 01 January 1877
• Citation: 1 Idaho 673
• Court: Idaho Supreme Court
• Parties: Lillienthal & Co., Appellants, v. Chris. Anderson, Respondent.

1 Idaho 673

Lillienthal & Co., Appellants, v. Chris. Anderson, Respondent.

Supreme Court of Idaho

January 1, 1877

CONTINUANCE.-Upon an affidavit showing the absence of a material witness and that proper diligence has been exercised, a party is entitled to a continuance.

MOTION FOR NEW TRIAL-PRACTICE.-On a motion for a new trial, on the ground that the court denied a continuance, the moving party should procure the affidavits of the absent witnesses showing that they can testify to the facts sought to be proven, or show sufficient reason for not obtaining such affidavits.

IDEM-SURPRISE-EVIDENCE OF.-On a motion for a new trial, on the ground that the party was taken by surprise by reason of one of his own witnesses failing to testify to a material fact which the witness had previously stated in the presence of others he could testify to, the affidavits of the persons in whose hearing such statements were made, are the best evidence of the surprise and should be produced.

INSTRUCTIONS-ADMISSIONS OF PLEADINGS.-It is error for the court to instruct the jury that it is necessary for the plaintiff to prove facts alleged in the complaint and not denied by the answer. The failure to deny a material allegation contained in a complaint, is an admission of it; and the admission is conclusive evidence of the fact admitted.

EVIDENCE.-Evidence which is capable of affording an inference of a fact, or which constitutes a link in the chain of proof, although alone it might not justify a verdict in accordance with it should be admitted. It is error to reject such evidence.

APPEAL from the Second Judicial District, Boise County.

George Ainslie, for the Appellants. Jonas W. Brown and Huston &amp Gray, for the Respondent.

PRICKETT, J.,

delivered the opinion,

CLARK J., concurring; HOLLISTER, C. J., dissenting.

The complaint in this action alleges, in substance, that the defendant and one James Thompson were partners, doing business as saloonkeepers, at Placerville, in Boise county, under the firm name of James Thompson; and, for a first cause of action, that said firm became and were indebted to plaintiffs, at a date and in a sum mentioned, for goods, wares, merchandise, liquors, etc., sold and delivered by plaintiffs to said firm. For a second cause of action: That said firm became and were indebted to F. Miller & Co., upon account, etc., and that said account and the balance due thereon had been assigned to plaintiffs. It further alleges, that since said indebtedness was created, Thompson died, leaving the defendant the sole surviving partner.

To this complaint the defendant answered, denying that he ever was a copartner of James Thompson; and to the first cause of action, "he denies that this defendant ever became indebted" for goods, wares, merchandise, etc., sold and delivered by plaintiffs to James Thompson and defendant, or to defendant individually. The answer as to the second cause of action denies that he, defendant, ever became indebted for goods, etc., sold by Miller & Co. to Thompson and defendant, or to defendant individually, or that there ever was any balance of account due to Miller & Co. from him, the defendant.

The term of court at which the cause was tried, commenced

March 7, 1876, and on that day, upon a call of the calendar, the trial was fixed for March 11th. Upon the day set for trial, the plaintiffs moved for a continuance, upon affidavits showing that immediately after the case was set for trial, plaintiffs caused subpoenas to be issued for their witnesses, and among others, for one Thomas Williams, who resided at Placerville, in Boise county, and was known to have been there as late as March 6, 1876. That the subpoena was placed in the hands of an officer, with money to pay witness his per diem and mileage; that the officer after due search has been unable to find Williams, and so returned. That afterward another subpoena was issued and placed in the hands of the officer with like result; that the witness, Williams, was on very friendly terms with defendant. The evidence expected to be obtained from said Williams was set forth in the affidavits, and it was material upon the issue of partnership. It was further shown that it had been the practice, ever since the organization of the court, to cause subpoenas to issue for witnesses residing in the county, immediately after cases were set for trial. The affidavits in other respects were sufficient. The court refused a continuance, on the ground of want of diligence in not issuing subpoenas before the commencement of the term, to which ruling the plaintiffs excepted. The cause was tried by a jury, and in the course of the trial the plaintiffs offered to prove that a certain building, then occupied and claimed by defendant as his own, but occupied by Thompson as a saloon building, in his lifetime, was built by defendant and Thompson in partnership, and that the material used in its construction was paid for out of the cash receipts of the saloon business. The court sustained objections to this and other testimony, and rejected the offered evidence, to which plaintiffs excepted. Both parties prepared certain instructions and requested the court to give them to the jury. The court gave those requested by defendant and refused certain of those presented by plaintiffs. To this action of the court plaintiffs excepted.

The fifth and sixth instructions given at the request of the defendant, which are the only ones necessary to be noticed

here are nearly in the same language, and to the effect that it was necessary to a recovery by the plaintiffs, that they should prove the sale and delivery of the goods, etc., as alleged in the complaint. The jury rendered a verdict for the defendant, and judgment was entered in his favor for costs. In due time the plaintiffs moved for a new trial upon affidavits and a statement of the case, alleging as grounds for the motion abuse of discretion in refusing a continuance, by reason of which plaintiff was prevented from having a fair trial; errors in law occurring at the trial and excepted to; in refusing the instructions asked for by plaintiff, and in giving those required by defendant; and surprise which ordinary prudence could not have guarded against, in that one of plaintiffs' witnesses had failed to testify upon the trial to...