People's Nat. Bank of Pensacola, Fla. v. Hazard
| Decision Date | 08 May 1911 |
| Docket Number | 2 |
| Citation | 80 A. 1094,231 Pa. 552 |
| Parties | Peoples National Bank of Pensacola v. Hazard, Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 21, 1911
Appeal, No. 2, Jan. T., 1911, by defendants, from judgment of C.P. No. 5, Phila. Co., March T., 1909, No. 2,589, on verdict for plaintiff in case of The Peoples National Bank of Pensacola, Florida, v. Horace G. Hazard and John H. Hillman trading as Horace G. Hazard & Company. Affirmed.
Assumpsit on a promissory note. Before MARTIN, P.J.
The facts are stated in the opinion of the Supreme Court.
Verdict and judgment for plaintiff for $1,605.26. Defendant appealed.
Errors assigned were (1-20) various rulings and instructions sufficiently indicated in the opinion of the Supreme Court.
The assignments of error are overruled, and the judgment is affirmed.
George F. Deiser, for appellants.
A. L Moise, with him S.D. Matlack and S. H. Alleman, for appellee.
Before FELL, C.J., BROWN, POTTER, ELKIN and STEWART, JJ.
This was an action of assumpsit on a promissory note for $1,450, made by the defendants, Horace G. Hazard & Company, to the order of C. W. Hagerman, trustee, dated at Philadelphia, February 3, 1906, and payable thirty-six months after date. The note was indorsed by the payee and also by the Wells-Kahn Company, by whom it was made payable to the order of the People's National Bank of Pensacola, Florida, the plaintiff. It was protested for nonpayment on February 3, 1909.
Upon the trial, counsel for plaintiff offered the note in evidence, and rested. The two defendants were then called by their counsel to prove that the consideration for the note was fraudulent and had failed. Counsel also read in evidence the depositions of the president of the plaintiff bank, and the manager of the Wells-Kahn Company, which had been taken by commission on behalf of the plaintiff. By these depositions it appeared that the plaintiff bank had discounted the note for the Wells-Kahn Company in the regular course of its business; that it was a bona fide holder for value, and that the Wells-Kahn Company had received the proceeds of the note. There was no evidence that the bank had notice of any equities existing between the original parties to the note. The trial judge gave binding instructions for the plaintiff, and the jury rendered a verdict in its favor for $1,605.26, upon which, after a new trial had been refused, judgment was entered. Defendants have appealed.
There are twenty assignments of error. The first four are to the verdict of the jury, which is not properly assignable for error. The fifth and nineteenth assignments allege that the trial court committed error in refusing to permit defendants to secure the presence of a material witness and in refusing a continuance until the return of a commission issued by them to Kansas City, Mo. Neither assignment quotes from the bill of exceptions and nothing whatever can be found in the testimony to support assignment five, and nothing except the allowance of an exception, to support assignment nineteen. The docket entries show that the rule for a commission was not entered until November 5, 1910, four days before the case was called for trial, although it had then been at issue for over a year. The granting or refusal of a motion for a continuance is a matter within the discretion of the trial judge, and his action will not be overruled except for manifest error: Com. v. Buccieri, 153 Pa. 570; Gillman v. Media, etc., Ry. Co., 224 Pa. 267. The twentieth assignment is to the refusal to grant a new trial; but it does not set forth the motion, the reasons assigned, or the order of the court. The power of this court to grant a new trial under the Act of May 20, 1891, P.L. 101, is exceptional in character, and only to be exercised in very clear cases of wrong. See Murtland v. English, 214 Pa. 325. No such case is here shown. In assignments six to ten inclusive, as amended, counsel complains of the court below for sustaining objections to certain questions asked of plaintiff's witness, James Simpson Reese, on cross-interrogatories, under the plaintiff's commission to take testimony at Pensacola, Fla. Upon the trial, however, the deposition of this witness was read in evidence by defendants' counsel, and was not offered by plaintiff. By this action defendants adopted the witness as their own.
The only questions properly raised by the assignments of error are whether the trial judge erred in sustaining objections to these questions, and in his final action in directing a verdict for plaintiff. Under the rules of court, objections to the admissibility of evidence taken on commission, may be taken on the trial, if the exception be one that might be taken, "if the witness were offered for examination orally in court." While the deposition of the witness Reese, was taken on behalf of plaintiff, yet for some reason, as we have noted, counsel for defendant saw...
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