Outcalt v. Johnston

• Decision Date: 14 June 1897
• Parties: OUTCALT v. JOHNSTON. [1]
• Court: Colorado Court of Appeals

49 P. 1058

9 Colo.App. 519

OUTCALT v. JOHNSTON. ^[1]

Court of Appeals of Colorado

June 14, 1897

Appeal from district court, Gunnison county.

Action by Jane R. Johnston against John B. Outcalt. From a judgment on a verdict in favor of plaintiff, defendant appeals. Affirmed.

Alexander Gullett and Goudy & Twitchell, for appellant.

Sprigg Shackleford and S.D. Crump, for appellee.

WILSON J.

This action was begun on a promissory note executed by defendant Outcalt, to plaintiff, and which reads as follows "Gunnison, Colo., Aug. 3, 1892. $539.55. Ninety days after date, I promise to pay to the order of Jane R. Johnston five hundred and thirty-nine 55-100 dollars at the office of William W. Outcalt, Gunnison, Colo., with interest at 1 1/2 per cent. per annum from date until paid, and ______ per cent. attorney's fees, if not paid at maturity. Value received. [ Signed] John B. Outcalt." Indorsed on back "September 15, 1894. By cash, $200." The copy was not inserted in the complaint, and it was described as being one which provided for the payment of a certain amount as principal, with interest specified, and also a reasonable attorney's fee, in the event that it was not paid at maturity. The answer admitted the execution of the note so far as concerns the statement of principal and interest due but denied that it provided for the payment of attorney's fees. Defendant also, by way of cross complaint, alleged that plaintiff was indebted to him in the sum of $1,360, with interest, on an account for work and labor performed, and for money laid out and expended, for the use of plaintiff, and at her instance and request. Plaintiff replied by a general denial of each and every allegation of the answer and cross complaint. Upon trial, verdict and judgment were in favor of plaintiff for the full amount of principal and interest claimed to be due upon the note, except the amount claimed for attorney's fee, which was disallowed by instruction of the court. From this judgment, defendant appeals.

There are 15 assignments of error. The first is to the action of the court in overruling the motion of defendant to suppress the deposition of Mrs. Johnston, the plaintiff. A careful search of the record before us fails to disclose any such motion. We find the order of court overruling such a motion, but not the motion itself, and hence we are not advised as to the grounds upon which it was based. Defendant filed numerous objections to certain questions and answers in this deposition, and all of them save two were sustained by the court. In these two instances we think the court was correct; the testimony sought to be stricken out being relevant and admissible.

Previous to the commencement of the trial, and on the same day, defendant filed a motion for a continuance, on the ground that he was not prepared to proceed with the trial, because of the absence of material witnesses, and in support thereof presented his affidavit. The overruling of this motion is assigned for error. To grant or refuse a continuance is a matter wholly within the discretion of the trial court, and can only be reviewed when the discretion has been abused. Dawson v. Coston, 18 Colo. 495, 33 P. 189. We fail to see any abuse of discretion in this instance. The motion did not show the exercise of the required diligence, and did show that the matters expected to be proven by the absent witnesses could be shown by two others, the plaintiff and his wife. In addition to this, one of the witnesses alleged to be absent did appear and testify in behalf of defendant on the trial. The court docket appears to have been called on the first day of the term, and this cause placed upon the trial docket. It was not called for trial until the ninth day of the term, and yet it does not appear from the affidavit that defendant had made any effort to ascertain the whereabouts, or secure the attendance, of the absent witnesses. There is an allegation that he had endeavored to ascertain their whereabouts, but he does not state in what his efforts consisted, nor when he had first learned that the witnesses were absent from the county. Defendant attempts to excuse his want of diligence by the statement that he did not know that the case would be for trial until the day previous to its commencement. This is not sufficient, for the reason that there is no claim that his counsel were absent during the previous days of the term, and knowledge by them was notice to him. The court did not abuse its discretion in refusing the continuance, especially in view of the fact that it appears from the record there was testimony on behalf of defendant at the trial as to the alleged facts desired to be shown by the absent witnesses.

The third and fourth assignments are to the effect that the court admitted improper evidence over the objections of defendant and refused to admit proper, competent, and material evidence offered in behalf of defendant. No specific evidence admitted or offered and refused is pointed out either in the bill of exceptions or in the motion for a new trial. It appears from the record that there were very few objections made to the introduction or to the offer of any testimony; and the ruling of the court upon such as were made, so far as we can see from a careful examination of the record, was substantially correct. Defendant was at least in no case harmed. Counsel for defendant did object to the introduction of the note in evidence, claiming that it was not the one described in the complaint. A variance is alleged, because the note, as described in the complaint, called for the payment of attorney's fees in case of its nonpayment at maturity, and that offered in evidence did not. It is manifest from the defendant's answer, as also from the whole course of the trial, that the variance between the complaint and the note was not a matter of surprise or injury to the defendant, and did not in any manner affect his substantial rights. The execution of the note and defendant's liability thereon was not denied either in the pleading or on the trial, except so far as there was a claim for attorney's fees. The court held that the note did not provide for the payment of attorney's fees, and instructed the jury to make no allowance therefor. This instruction was followed, as...