Sharmer v. McIntosh
| Decision Date | 16 January 1895 |
| Docket Number | 5420 |
| Citation | 61 N.W. 727,43 Neb. 509 |
| Parties | JOSEPH SHARMER, APPELLEE, v. JAMES J. MCINTOSH, APPELLANT, ET AL |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Cheyenne county. Heard below before CHURCH, J.
George W. Heist and Henry St. Rayner, for appellant:
One who has a direct legal interest in the result of a cause in which the adverse party is administrator of a deceased person is not a competent witness therein. (Code Civil Procedure, sec 329; Ransom v. Schmela, 13 Neb. 74; Wamsley v Crook, 3 Neb. 344; Magenau v. Bell, 13 Neb 248; Housel v. Cremer, 13 Neb. 298; Martin v Scott, 12 Neb. 42; Rakes v. Brown, 34 Neb. 304; Kimball v. Kimball, 16 Mich. 211; Cook v. Stevenson, 30 Mich. 242; Mundy v. Foster, 31 Mich. 313; Van Wert v. Chidester, 31 Mich. 209; Hart v. Carpenter, 36 Mich. 402; Harmon v. Dart, 37 Mich. 53; Downey v. Andrus, 43 Mich. 65; Rayburn v. Mason Lumber Co., 57 Mich. 273; McCutcheon v. Loud, 71 Mich. 433; McHugh v. Dowd, 86 Mich. 412; Penny v. Croul, 87 Mich. 31; Van Alstyne v. Van Alstyne, 28 N.Y. 378; Card v. Card, 39 N.Y. 317; Green v. Edick, 56 N.Y. 613; Comins v. Hetfield, 80 N.Y. 265; Holcomb v. Holcomb, 95 N.Y. 316; Rogers v. Brightman, 10 Wis. 50; Lawrence v. Vilas, 20 Wis. 406; Koenig v. Katz, 37 Wis. 156.)
The evidence of W. C. Reilly, the legal adviser and attorney of Morgan, as a witness for Sharmer, against the objections of appellant, is clearly within the prohibition of section 333 of the Civil Code, and should have been excluded as privileged. (Romberg v. Hughes, 18 Neb. 579; Loveridge v. Hill, 96 N.Y. 222; 1 Greenleaf, Evidence, secs. 236--243.)
Webster, Rose & Fisherdick and W. C. Reilly, contra.
Sharmer brought his action in the district court of Cheyenne county, alleging that the defendant Frank B. Johnson and Samuel C. Morgan had been copartners, doing business as bankers under the name of the State Bank of Sidney, in the town of Sidney, and continued to conduct said business until June 27, 1889, when Morgan died intestate; that the defendant McIntosh was his administrator; that Johnson, since the death of Morgan, had refused to administer the affairs of the partnership and had at all times since Morgan's death denied the existence of the partnership; that the plaintiff had deposited divers sums with the bank and had performed labor for the bank, and that the indebtedness from the bank to the plaintiff at the time of Morgan's death was $ 4,477.71; that the bank had from time to time given to plaintiff security for the indebtedness to him, usually notes and other evidences of indebtedness belonging to the bank, and that at the time of Morgan's death the plaintiff held as security for the balance due him certain securities named in the petition. Among these were two county warrants, and the remainder thereof were notes made or indorsed to the bank; that McIntosh claimed that Morgan was the owner of said instruments and was threatening to collect the same from the debtors, and that because of the controversy as to the ownership of said instruments the debtors refused to pay the same, and there was great danger of loss unless they could be collected before the question as to their ownership should be decided. The petition further alleged that Johnson and the estate of Morgan were both insolvent. The prayer was for an injunction restraining the defendants from intermeddling with the notes or warrants or taking any proceedings in relation thereto, for a receiver to take possession thereof, to collect them and to retain the proceeds to abide the final order of the court, for judgment against Johnson and the administrator of Morgan for the amount of the debt, and for a decree establishing the plaintiff's lien upon the notes and warrants, and that the proceeds thereof be applied to the payment of plaintiff. A receiver was appointed as prayed. After the commencement of the suit, McIntosh was in another action appointed receiver of the bank upon the ground that Johnson denied the partnership and refused to exercise the duties of a surviving partner. These facts were set up by supplemental pleadings. Johnson made default; McIntosh, as Morgan's administrator and as receiver of the bank, answered, denying the allegations of plaintiff's petition and averring that all the notes and warrants referred to in the petition were at the time of Morgan's death the property of and in the possession of the bank; that plaintiff was employed by the bank and subsequently to the death of Morgan unlawfully took into his possession the notes and warrants and appropriated them to his own use. There was a trial to the court and finding for the plaintiff and a decree according to the prayer of the petition. From this decree McIntosh appeals.
Before answering McIntosh had demurred to the petition, and the first reason urged by appellants against the decree is that the court erred in overruling this demurrer. The appellant, by answering over, waived the right to have the demurrer considered as such, but, of course, if the petition did not state a cause of action the decree was erroneous and should be reversed for that reason. The only defect in the petition suggested is that it does not allege that the bank or Morgan delivered the notes to plaintiff in pursuance of any agreement. The petition alleges that an indebtedness had existed for a long time from the bank to plaintiff, and that it was the custom and manner of business between plaintiff and the bank for the bank to give plaintiff security from time to time, usually in the form of notes and other evidences of indebtedness; that the custom had been for plaintiff to permit the bank from time to time to withdraw from pledge such notes, substituting others therefor; that it had formerly been the custom to endorse such notes to the plaintiff, but that latterly, for fear that such indorsements might impair the financial standing of the bank, it had become the custom to deliver such notes as security without indorsement; that at the time of the death of Morgan, "there were in the hands of this plaintiff in pledge as collateral security upon the same indebtedness the following evidences of indebtedness," etc. These averments were not very specific and the petition was probably open to a motion to make them more so, but no such motion having been made we think they were sufficient allegations, coupled with the other averments, to state a cause of action. The fair and ordinary interpretation of the language would be that the notes were in plaintiff's hands as collateral security to his debt in pursuance of a contract with the bank to that effect.
The next objection made to the proceedings is that the court refused the appellants' request to impanel a jury and try the issues thereto. There is no merit in this objection. The constitutional provision is that the right of trial by jury shall remain inviolate. (Constitution, art. 1, sec. 6.) But this does not mean that in all cases a party has a right to have the facts determined by a jury. The provision preserves the right to jury trial as it existed when it was adopted but it does not create or extend such right. There never was, and there is not now, any constitutional or statutory right to a jury trial in an equitable action. (Dohle v. Omaha Foundry & Machine Co., 15 Neb. 436, 19 N.W. 644. Section 280 of the Code provides that issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by a jury, unless a jury trial is...
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