McGuire v. Kenefick

• Decision Date: 14 April 1900
• Parties: C. MCGUIRE v. J. P. KENEFICK, Appellant
• Court: Iowa Supreme Court

82 N.W. 485

111 Iowa 147

C. MCGUIRE v. J. P. KENEFICK, Appellant

Supreme Court of Iowa, Des Moines

April 14, 1900

Appeal from Hardin District Court.--HON. D. R. HINDMAN, Judge.

ACTION on promissory note. Defense, usury. The defendant appeals from judgment on a verdict against him.

Affirmed.

J. H Scales for appellant.

Albrook & Lundy for appellee.

OPINION

LADD, J.

The court rightly excluded evidence sought to be elicited from the defendant on direct examination concerning a usurious loan previously made to him by the plaintiff. It was an entirely independent transaction, having no possible connection with the execution of the note in suit.

II. No unvarying rule as to how far back inquiry concerning the general reputation of a witness for truth and veracity may properly extend can be stated, as this must, of necessity depend on the peculiar facts of each case. Because of the presumption that status, once established, continues until a change is shown, some courts hold that proof of such reputation at a time somewhat remote from the trial, and at a place of residence other than then had, may be received these circumstances affecting only the weight to be given the evidence. Mynatt v. Hudson, 66 Tex. 66 (17 S.W 396); Kelly v. State, 61 Ala. 19; Snow v. Grace, 29 Ark. 131; People v. Abbot, 19 Wend. 192. A person of mature age, possessed of character notoriously bad, will be unlikely to so reform as to acquire a different character within a brief time. Nevertheless, men change, though not often suddenly; and evidence of recent reputation, near the time of trial, is ordinarily entitled to greater weight than should be accorded that of a more remote period. This is recognized by all the authorities, and, when obtainable, it would seem such evidence ought to be produced, because of its superior quality, especially where, as in this state, the practice of limiting the number of witnesses testifying to character prevails. Besides, to extend the inquiry far in the past, and to a residence other than that recently had, may impose an unwarrantable burden on the witness whose character is assailed, and frequently work irreparable wrong. As said by Brewer, J., in Fisher v. Conway, 21 Kan. 18; "Impeaching testimony is for the purpose of discrediting the witness by showing that the community in which he lives do not believe what he says; that he is such a notorious liar that he is generally disbelieved. It is his present credibility that is to be attacked. Is he now to be believed? What do his neighbors think and say of him at the present time; not what did they think and say months or years ago? True, general reputation is not established in a day; and so the inquiry is not to be restricted to any particular week or month or year. The reputation a man has in any community is based upon all the years, few or many, of his living in such community." To the same effect, see Sun Fire Office v. Ayerst, 37 Neb. 184 (55 N.W. 635); City of Aurora v. Cobb, 21 Ind. 492; Packet Co. v. McCool, 83 Ind. 392; Webber v. Hanke, 4 Mich. 198; Keator v. People, 32 Mich. 484; Young v. Com., 69 Ky. 312, 6 Bush 312; Wood v. Matthews, 73 Mo. 477; Smith v. Hine, 179 Pa. 203 (36 A. 222). In State v. Potts, 78 Iowa 656, 43 N.W. 534, the defendant had established a reputation in Des Moines by five years' residence, and the admission of evidence of his previous reputation at Newton and Brooklyn of the same state was adjudged error. But in Schoep v. Insurance Co., 104 Iowa 354, 73 N.W. 825, the witness had removed from Sioux Center a year previous to the trial, and, it not appearing that he had acquired a new residence at any other place, proof of reputation there was held to have been properly received. In that case we said, "The rule in regard to the admission of such evidence, so far as it relates to the time when the reputation existed, is somewhat flexible." Whether a new residence has been acquired, and for such a length of time and under such circumstances as that proof of character in that neighborhood, rather than at the former home, must be adduced, is for the determination of the trial court; and its decision, ought to be final. Teese v. Huntingdon, 64 U.S. 2, 23 HOW 2 (16 L.Ed. 479); Holliday v. Cohen, 34 Ark. 707; Brown v. Perez, 89 Tex. 282 (34 S.W. 725); Buse v. Page, 32 Minn. 111 (19 N.W. 736). Chief Justice Bleckley, in Watkins v. State, 82 Ga. 231 (8 S.E. 875, 14 Am. St. Rep. 155), declared that "on such a question the past and present are so related that no complete severance between them can be made. * * * As the law prescribes no definite limit in time, we think the discretion of the court must, of necessity, be exercised in every instance where the proposed evidence is not so remote as to preclude all difference of opinion." There the...