Oberholtzer v. Hazen

• Decision Date: 12 February 1897
• Citation: 70 N.W. 207,101 Iowa 340
• Parties: H. H. OBERHOLTZER v. JOHN T. HAZEN, Sheriff, Appellant
• Court: Iowa Supreme Court

70 N.W. 207

101 Iowa 340

H. H. OBERHOLTZER v. JOHN T. HAZEN, Sheriff, Appellant

Supreme Court of Iowa, Des Moines

February 12, 1897

Appeal from Pottawattamie District Court.--HON. W R. GREEN, Judge.

JUDGMENT was entered against the defendant in the supreme court, May 31, 1894. Defendant had filed his petition for new trial in the district court, and, after judgment was entered here amended his petition, asking that proceedings thereon be enjoined pending the hearing of the application for new trial. A writ of injunction was issued, as prayed, by the district court, and a motion to dissolve it overruled. From this ruling, plaintiff appeals.--Reversed. On final hearing the petition for new trial was dismissed, and defendant appeals, perfecting his appeal first.--Affirmed.

AFFIRMED on defendant's appeal, and REVERSED on plaintiff's appeal.

John J Hess and Flickinger Brothers for appellant.

Wright & Baldwin for appellee.

OPINION

LADD, J.

I.

The defendant bases his application for new trial on the ground of newly discovered evidence, and in support thereof relies on the testimony of three witnesses. There is some controversy as to whether the deposition of Stabo was withdrawn. This need not be determined, as, in any event, it was properly suppressed. This witness testified from certified copies of reports of a commercial agency and what he believed, from information derived at such agency. It does not appear that he made the reports or copies. No argument is required to show that such testimony cannot be received.

II. One Peterson testified, in substance, that H. R. Oberholtzer told him that he was the owner of the stock of goods in controversy, and placed it in C. M. Oberholtzer's name to avoid his creditors. The issues involved in the original case are fully stated in 92 Iowa 602 (61 N.W. 365). Neither plaintiff nor defendant claimed through or under H. R. Oberholtzer. It is said in Taylor v. Lusk, 9 Iowa 444, that "declarations of a person while in possession of personal property, explanatory of such possession, as he held it as the agent or for another, or in his own right, are admissible in evidence against a party claiming under him." The rule has never been extended so as to admit the declarations of a person under whom neither party claims.

III. Another witness, Day, testified that plaintiff applied to him for a loan of three thousand dollars about a year before the failure of C. M. Oberholtzer and said he wanted to "put it into his cigar...