Peck v. Parchen
| Citation | 2 N.W. 597,52 Iowa 46 |
| Parties | PECK ET AL. v. PARCHEN ET AL |
| Decision Date | 09 October 1879 |
| Court | United States State Supreme Court of Iowa |
Appeal from Woodbury Circuit Court.
THE plaintiffs, C. K. Peck, surviving partner of the firm of Durfee & Peck, and O. B. Taylor, Geo. H. Durfee and Charles B. Taylor, executors of the estate of E. H. Durfee, deceased late member of the firm of Durfee & Peck, on the 21st day of April, 1875, filed their petition against the defendant Henry M. Parchen, claiming the sum of $ 1,550 balance on account for the transportation of goods by the firm of Durfee & Peck, on the steamboat Nellie Peck, in 1871, for the firm of Parchen & Paynter, and for money advanced by Durfee & Peck to pay railroad charges on said goods. An attachment was issued and levied upon property of the defendant Parchen. The defendant Parchen filed a motion to strike from the petition all the parties plaintiff except C. K. Peck, sole surviving member of the firm of Durfee & Peck, on the ground that the executors of Durfee were improperly joined as plaintiffs. This motion the court sustained. The defendant Parchen filed his answer denying all indebtedness, averring payment and settlement, and in the fourth count of his answer, by way of counter-claim, setting up a judgment obtained in Montana by Henry M. Parchen and Woodman S. Paynter against C. K. Peck in his capacity as sole surviving partner of Durfee & Peck. To this fourth count of the answer the plaintiff demurred on the ground that the judgment so set up by defendant is in favor of H. M. Parchen and W. S. Paynter, and no right of action exists in favor of Parchen thereon; and that there is a defect of parties plaintiff in said counter-claim in this that W. S. Paynter is a joint owner with defendant of said judgment and is, not a party to this action. This demurrer was overruled. The plaintiff excepted. After this demurrer was overruled, said W. S. Paynter, against the objections of plaintiff, was allowed to enter his appearance in the cause, and defend therein.
Plaintiff filed a reply to the affirmative allegations in the answer, and averred in the second count of the reply that said alleged settlement was made and allowed through fraud and deceit in this: that James Arnoux, who acted for Parchen and Paynter in receiving the goods and weighing the same, falsely and fraudulently returned to the clerk of said boat that said goods weighed only 97,081 pounds, when, in fact, they weighed 120,000 pounds, as billed; and falsely and fraudulently claimed and represented that there was a shortage and damage to said goods of $ 604.54, while, in fact, all the goods were delivered by said boat and received by defendant's agent in good order, and that the clerk of said boat, relying on said representations, allowed said claim for damage and shortage, and the settlement then made was based upon the false and fraudulent representations of said Arnoux as to the weight of said goods and false claim for damage and shortage.
For reply to the counter-claim, set up in the fourth count of the answer, plaintiff averred that within the time allowed by the law of Montana, he had taken and perfected an appeal from said judgment in all respects as required by law, and said cause was then pending in the Supreme Court of Montana, and defendants ought not to prosecute said action on said judgment, and that after said judgment was rendered, money due the plaintiff in Montana to the amount of $ 1,400 was garnished, and is now held under said process, and defendant cannot now prosecute suit upon said judgment. The defendant moved to strike out these divisions of the reply as immaterial and irrelevant. The motion was sustained. The plaintiff excepted. The divisions of the reply thus stricken out are paragraphs two, four and five. Thereupon the plaintiff, as an amendment to his reply, filed a substitute for the second paragraph thereof.
At the September term 1877, plaintiff filed motion and affidavits for continuance, which were overruled. The plaintiff at the time excepted. The cause was tried to the court without a jury. The court made its findings of facts and conclusions of law, and rendered judgment against the plaintiff on his petition, and in favor of the defendants on their counter-claim for the sum of $ 2,832.25, and costs. Plaintiff filed a motion for a new trial which was overruled. The plaintiff appeals.
AFFIRMED.
Joy & Wright, for appellant.
S. M. Marsh and R. J. Chase, for appellees.
I.
The affidavit for a continuance, in addition to a statement of the facts expected to be proved by the absent witness, and the grounds of belief that plaintiff would be able to procure his testimony by the next term of the court, is as follows: "C. K. Peck, sworn, says he is the plaintiff in this action; that Grant Marsh, of Yankton, Dakota Territory, is a material witness for him, without whose testimony it will not be safe for him to proceed to trial at this term of court; that plaintiff has a good and meritorious cause of action against defendant; that at each and every term of court at which this cause has been ready for trial, said Marsh has been accessible and his testimony procurable, and at last term of this court said Marsh was present to testify in said cause, and remained here until said cause was continued; that at that time said Marsh intended, and stated to affiant that he expected to be engaged at Yankton during the entire summer season, and had a ferry boat run up the river to Yankton to use at said point; that, after said last term of court, said Marsh went east and was traveling around in different places in the country, and expected to return to Yankton early in the spring, and remain there; and he did return about the time navigation opened on the Missouri River, and he at once, without affiant's knowledge, went up the river to Fort Pierre with his ferry boat, and left said boat at Pierre with other parties, and started on his return to Yankton, but was stopped at Bismark, and there employed on the boat Rosebud to go up the Yellowstone river; that affiant had no knowledge that said Marsh was going on said steamer until he had left, and that he was then informed that said steamer would return from said trip, and said Marsh would return to Yankton before this August term, 1877; that during all the time said steamer has been up the Yellowstone said Marsh has not been at any point where deponent could take his deposition, and said Marsh, since he went up the river with ferry boat to Pierre, has not been at any point a sufficient length of time to take his deposition; that deponent had been at Yankton several times during the season, and inquired of Marsh's friends and family when he would return, and they always informed him he would return before August 15th: that most of the steamers that went up the Missouri and Yellowstone rivers have returned, but said Rosebud, on which Marsh is captain, being of light draught, was ordered by government in past two weeks to remain longer up the Yellowstone on government duty; that deponent, on the 31st ult., went to Yankton to ascertain in reference to the return of Marsh, and was then, for first time, informed that Marsh would be detained up the river until October 1st; that deponent relied on said Marsh being and remaining at Yankton the present season, where his family resides, and did not know he was going away until he had left, and there has been no time since he left that deponent could have his deposition taken, as he has been traveling all the time on the river and away from any point where depositions could be taken, and deponent relied upon his return to Yankton before this, as his family expected him to return." An amendment to this affidavit was filed, but it states no material additional facts. The overruling of the application for a continuance is assigned as error. The granting or refusing a motion for a continuance necessarily involves much of judicial discretion. Boone v. Mitchell, 33 Iowa 45. This action was commenced in April, 1875. The application for continuance was made in September, 1877. At the preceding term of the court the cause was continued, and for aught that the record discloses, it was continued upon the application of the plaintiff. It was proper for the court to take into consideration all the circumstances of the case, the length of time the cause had been pending, the number of continuances, and upon whose application obtained. The witness, Marsh, was known by plaintiff to be a non-resident, and yet plaintiff took no steps to take his deposition, but relied upon his promise to be present to testify in the case. A party is held to more care and diligence to procure by deposition the testimony of a witness who is a nonresident, and beyond the process of the court, than he is required to employ in the case of a resident witness, who is not likely to be beyond the process of the court. Friske v. Berryhill, 10 Iowa 203. The case of Boone v. Mitchell, 33 Iowa 45, is very much like the present one. The record does not disclose any abuse of judicial discretion in overruling the motion for continuance.
II. It is insisted that the court erred in striking from plaintiff's reply the paragraph alleging, as a defense to the counter-claim on the judgment recovered in Montana Territory, that an appeal had been duly and legally perfected to the Supreme Court and was then pending. The presumption as counsel for both parties to this suit claim, is that the laws of Montana upon this subject are the same as our own. Section 3186 of the Code provides: "An appeal shall not stay proceedings on the judgment or order, or any part thereof, unless the appellant shall cause to be executed * * * * a bond," etc., the reply stricken out does not allege...
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