Newlon v. Tyner

• Decision Date: 11 June 1891
• Docket Number: 14,765
• Citation: 28 N.E. 59,128 Ind. 471
• Parties: Newlon v. Tyner
• Court: Indiana Supreme Court

28 N.E. 59

128 Ind. 471

Newlon v. Tyner

No. 14,765

Supreme Court of Indiana

June 11, 1891

Original Opinion of April 4, 1891, Reported at: 128 Ind. 466.

OPINION

Olds J.

Counsel are so earnest in their appeal for a rehearing in this case that we feel like adding a word in addition to what we have said in our original opinion. Counsel exhibit a great deal of warmth in their argument against the opposing counsel in the case, and seem to feel that an advantage was gained by a trick in the trial of the cause, and that the opinion in this case gives license to an unfair practice. In this counsel are very much in error. It must be presumed, in favor of the trial court, that if anything had occurred by which one party had gained an advantage by a trick, or unfair practice, as counsel characterizes the conduct of opposing counsel in this case, the trial court would have righted the wrong by setting aside the submission, or granting a new trial. This court, by its decision, gives no countenance to unfair practices. A proper result seems to have been reached under the evidence. The wrong and error complained of by counsel are on account of the court permitting counsel for appellee, on cross-examination of appellant's expert witnesses, to submit checks and vouchers to them which purported to be in the genuine handwriting, and signatures of the appellant, but which were not, in fact, in his handwriting, and did not bear his genuine signature, and to cross-examine the witnesses in regard to them, and take their opinion as to their genuineness. They were not papers in the case, and such examination was not proper, unless they were admitted by the appellant to be genuine; and it was the duty of the appellant and his counsel to ascertain definitely as to their genuineness before permitting such examination, or allowing them to be treated as genuine, and such examination to proceed. It is the duty of counsel to be vigilant. If an objection had been interposed the examination would not have been proper. Hazzard v Vickery, 78 Ind. 64; Shorb v. Kinzie, 80 Ind. 500; Cox v. Dill, 85 Ind. 334.

We did not say, in the original opinion, what we have now said, as no good could come of saying it, and we have only added what we now say by reason of the earnestness with which counsel have urged their petition, and because they seem to feel that their case had been hastily considered, though in this they are in error.

The ...