Pinschowers v. Hanks

• Citation: 1 P. 454,18 Nev. 99
• Parties: JONAS PINSOHOWERS and others v. W. J. HANKS.
• Decision Date: 25 October 1883
• Court: Supreme Court of Nevada

1 P. 454

18 Nev. 99

JONAS PINSOHOWERS and others v. W. J. HANKS.

Supreme Court of Nevada

October 25, 1883

Where there is a substantial conflict of testimony upon material points and no clear preponderance of the evidence, the verdict will not, upon this ground, be disturbed.

A witness may refresh his memory by reference to a written paper, which he may read, and then give in evidence his recollection of the facts, not the written paper. He thus testifies to the correctness of the facts set forth in the statement as read by him.

Upon a judgment against ostensible partners in the firm name, the interest of the parties not named would also pass to the sheriff's vendee.

It is the duty of litigants to be active and diligent in procuring testimony for maintaining their cause, and in an affidavit of newly-discovered evidence their acts of diligence should be stated, so as to enable the court to determine whether the conclusions in the affidavit are supported by the facts.

William Woodburn and J. A. Stephens, for appellant.

W. E F. Deal, for respondent.

HAWLEY C.J.

This action was brought to recover damages for the conversion of certain personal property, consisting of a stock of clothing which originally belonged to the firm of Rich Bros.

The plaintiffs in this action brought suit against A. Rich and J. Rich, alleged to constitute the firm of Rich Bros., attached the property, recovered judgment by default, and purchased the property under an execution sale in said action. After the delivery of the property to them by the sheriff, and on the same day, the property was levied upon under an attachment issued in an action commenced by the Colman Bros against A. Rich, Isidore Rich, and J. Rich, alleged to be copartners under the firm name of Rich Bros. Colman Bros. obtained judgment and the property in question was sold under execution in that action.

The defendant in this action is the sheriff of Storey county, and in his answer justifies his seizure and sale of the property under and by virtue of the proceedings in Colman Bros. v. Rich Bros. He alleges that the notes upon which the action of Pinschowers v. Rich Bros. was instituted (except a note to Kirkpatrick & Stephens for $1,000) were fraudulent, and were made for the purpose of hindering, delaying, and defrauding the creditors of Rich Bros.

1. It is earnestly argued by defendant's counsel that the evidence in this case is insufficient to justify the verdict in favor of plaintiffs. The testimony which plaintiffs gave in their own behalf seems to be, in some respects, improbable; but in several material and important points it was corroborated by impartial witnesses, and after a careful examination we are unable to say that it should be rejected, and considered so false upon its face that no verdict should be allowed to stand upon it. Their testimony is not free from suspicion; but there is nothing in the record that would justify us in saying that it is "utterly untrustworthy." The character of the testimony offered by defendant to impeach and destroy the testimony of plaintiffs, and to show that the notes, hereinbefore referred to, were fraudulent, is, in many respects, at least, as suspicious and improbable as the testimony of plaintiffs. In this state of the case, it was the duty of the jury and the district judge to determine, from all the facts before them, the truth or falsity of the testimony as given by the respective witnesses. If they considered the testimony of plaintiffs worthy of credit, the evidence is sufficient to sustain the verdict. There is not such a clear preponderance of evidence against the verdict as to warrant any interference by this court. There is a substantial conflict of evidence upon material points, and, under the rule so frequently announced by this court, the verdict will not, upon this ground, be disturbed.

2. It is claimed that the court erred in excluding certain depositions showing that Isidore Rich was a member of the firm of Rich Bros. We are of opinion that this question was immaterial. The respective suits were brought against the firm of Rich Bros. The notes sued upon in Pinschowers v. Rich Bros. were executed in the firm name, and the plaintiffs in that action were entitled to recover, if at all, whether Isidore was a member of the firm or not, or whether he was made a party to the suit. Whitmore v. Shiverick, 3 Nev. 306; Brown v. Birdsall, 29 Barb. 549; Wright v. Herrick, 125 Mass. 154. The defendants in that action might, perhaps, have taken advantage of the defect of parties defendant by plea in abatement. But if Isidore was a dormant partner, then the non-joinder could not have been successfully pleaded by them. "Much less can it be pretended that, upon a judgment against ostensible partners, in the firm name, the interest of the partners not named will not pass to the sheriff's vendee." Taylor v. Henderson, 17 Serg. & R. 453; Harper v. Fox, 7 Watts & S. 142; Grier v. Hood, 1 Casey, 430; Carey v. Bright, 58 Pa. St. 84. The declarations of Isidore Rich were not objected to. All of his acts and conduct, with reference to the question whether the transaction between the Pinschowers and the Rich Bros. were fraudulent, were admitted in evidence without objection. Under these circumstances the court did not err, to the prejudice of defendant, in excluding the depositions.

3. Joseph Rodgers, who testified in favor of defendant, was asked upon cross-examination whether he did not, at a certain time and place, and in the presence of certain parties, make a certain statement, as to facts within his knowledge, at variance with his testimony on the trial. He answered that he made no such statement. The attorney for the plaintiff was called as a witness, in rebuttal, and testified that the witness Rodgers came to his office, at the time named, and made a statement as referred to in the cross-examination of the witness; that this statement was written down by the attorney and read to the witness Rodgers; that Rodgers did not sign it, but stated that it was correct, and that he would so testify, if called as a witness, upon the trial of the case. The attorney, when asked what statement Rodgers made, asked leave of the court to refresh his memory by referring to the written statement, and, leave being granted, he then read aloud the written statement as taken down by himself. It is contended that the court erred in permitting the attorney to read this statement. The written statement was not offered in evidence for any purpose. The attorney had the right to examine the paper for the purpose of refreshing his memory as to the statement made by Rodgers. He testified to the correctness of the facts set forth in the statement as read by him. It was not the written statement, but the recollection of the witness, that was given in evidence. It was not erroneous to allow the witness to refresh this recollection by reading the statement. Cooper v. State, 59 Miss.

272; Halsey v. Sinsebaugh, 15...