Sells v. Haggard

• Citation: 32 N.W. 66,21 Neb. 357
• Parties: SELLS v. HAGGARD AND OTHERS.
• Decision Date: 01 March 1887
• Court: Supreme Court of Nebraska

21 Neb. 357

32 N.W. 66

SELLS

v.HAGGARD AND OTHERS.

Supreme Court of Nebraska.

March 1, 1887.

Syllabus by the Court.

While a plaintiff in an appellate court must prosecute the same cause of action as in the court of original jurisdiction, yet, so long as the identity of the cause of action is maintained, he may plead and show any fact to show its validity.

A letter held to be incompetent, properly excluded.

Where, from the deposition of certain witnesses, it appears that they are non-residents of the state, it is unnecessary for the party offering the depositions in evidence to prove they cannot be present in court.

A party plaintiff, who is a non-resident of the county where the trial is held, need not appear personally to testify in the case; but his deposition may be taken as in the case of other non-resident witnesses.

Where the statute of another state is pleaded and offered and allowed in evidence, but not introduced, it will be unavailing to the party offering the same.

The statute of another state must be pleaded as facts, and the proof submitted to the jury.

Error from Platte county.

McAllister Bros., for plaintiffs.

Sullivan & Reeder, for defendant.

MAXWELL, C. J.

This action was brought on a promissory note, of which the following is a copy:

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                ¦“$100.¦ANCHOR, ILLINOIS, October 17, 1882.¦
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On or before the first day of December, 1883, for value received, I, or we, the undersigned, of Anchor township, county of McLean, state of Illinois, promise to pay to the order of D. D. Haggard & Co. one hundred dollars, at C. A. Schurman & Co.'s bank at Saybrook, Ill., with exchange and expense of collection, and interest at eight per cent. per annum, payable annually from date until maturity, and eight per cent. per annum, from maturity until paid. If this note is not paid at maturity, and is placed in the hands of an attorney for collection, in consideration of the credit herein given, we agree to pay its holder ten per cent. additional upon the amount due, as liquidated damages for non-payment at maturity, and also other expenses incurred in its collection. Demand, protest, and notice of non-payment waived by drawers and indorsers.

MARY J. her X mark. SELLS.

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                ¦Witness: O. POTTER.¦J. A. SELLS.”¦
                +---------------------------------+
                

Defendant answers as follows: “Now comes the said defendant, Mary J. Sells, and, for answer to the plaintiffs' petition, states: First. She admits that she signed the note mentioned and referred to in plaintiffs' petition, but alleges that it is null and void, and for the following reasons: Second. Said defendant alleges that, at the time she signed said note, she was a married woman, and living with her husband; that the said note was not given for any debt or obligation owing by this defendant to said plaintiffs, or for any claim or obligation against the separate property of this defendant. Third. Said defendant alleges that said note was obtained by said plaintiffs by force and duress, and was not her voluntary act in this, to-wit: Defendant alleges that W. H. Haggard, of the firm of D. D. Haggard & Co., plaintiffs, on the day that said note was executed, told this answering defendant that if she did not give and sign this note, then he would have her husband, Basil Sells, arrested and prosecuted, and sent to the penitentiary of Illinois; that this defendant then and there believed that if she did not give and sign the note in suit, that said W. H. Haggard would immediately arrest and imprison her said husband.”

The reply was as follows: “Comes now the said plaintiffs, D. D. Haggard & Co., and, for a reply to defendant's answer filed herein, admits: (1) That defendant was a married woman at the time she executed the note in question. (2) And plaintiffs aver that said note was signed, and said contract entered into, in the state of Illinois; and that the time said note was so signed, and said contract entered into, that section number six of chapter number sixty-eight of the statutes of the state of Illinois was as follows: ‘Contracts may be made and liabilities incurred by a wife, and the same enforced against her, to the same extent and in the same manner as if she were unmarried; but, except with the consent of her husband, she may not enter into or carry on any partnership business, unless her husband has abandoned or deserted her, or is idiotic or insane, or is confined in the penitentiary.’ Said statute was then and now is in force in said state. (3) Plaintiffs deny each and every other allegation in said answer contained.”

To this reply the defendant filed a motion, supported by an affidavit, as follows: “Now comes the said defendant, Mary J. Sells, and moves the court to strike out the second paragraph or count of plaintiffs' reply, for the reason that said count raises a new and different issue from any issue that was raised or presented in the trial of this case in the court from which it was appealed. In support of this motion defendant refers to the files in this case in the county court of Platte county, and also the affidavit of Stephen S. McAllister, herewith filed and made a part hereof.

“AFFIDAVIT.

Stephen S. McAllister, being first duly sworn according to law, deposes and says that he was one of the attorneys for said defendant in the trial of this case in the county court of Platte county, and was present during the entire trial of said cause, acting as the attorney for said defendant, and that on said trial no reference was made to the statute of Illinois, mentioned and set forth in the 2d count of plaintiffs' reply, nor was the said statute of Illinois offered in evidence by said plaintiffs, nor was any issue raised on or concerning said statute of Illinois in said county court.

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                ¦[Signed]¦STEPHEN S. MCALLISTER.”¦
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The motion was overruled, to which the defendant below (plaintiff in error) excepted, and now assigns the overruling of said motion for error.

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