Shipley v. Reasoner
| Decision Date | 01 February 1893 |
| Citation | 54 N.W. 470,87 Iowa 555 |
| Parties | A. H. SHIPLEY, Appellant, v. JOHN REASONER, Appellee |
| Court | Iowa Supreme Court |
Appeal from Madison District Court.--HON. J. H. HENDERSON, Judge.
ACTION to recover possession of two promissory notes executed by the plaintiff, for two hundred dollars each, payable to G. B Morse, or bearer, January 1, 1889. The grounds of recovery briefly stated, are that the notes were given in what is commonly known as a "Bohemian Oats Transaction," and are without consideration and void; that the defendant was a party to the transaction, and received said notes after maturity, and with full knowledge of their inception. After the case was reversed on the former appeal (80 Iowa 548,) and remanded, the defendant filed an amended and substituted answer, to which the plaintiff replied, and the case was again tried to a jury. The jury were instructed that, under the evidence, the defendant was entitled to the possession of the notes, and that the only question for them to determine was their value. A verdict was returned in favor of the defendant, and fixing the value of the notes at five hundred and forty-seven dollars and sixteen cents. The defendant elected to take a money judgment for the value of the notes and judgment was entered accordingly, from which the plaintiff appeals.
Affirmed.
J. P. Steele and John Leonard & Son, for appellant.
Dabney & Guiher, for appellee.
I.
The appellant's first complaint is of the refusal to give an instruction in substance as follows: That statements and admissions of a party in his pleadings "are, as evidence, of the gravest weight against him; and where, in the trial of a cause, there is no testimony in any manner contradicting or explaining away such statements or admissions, they should, as against the party making them, be taken, considered, and acted upon as true." The appellant contends that, as the defendant had made certain admissions in his original answer different from the allegations of his amended and substituted answer, and from what was claimed on the trial, the instruction should have been given. The appellee contends that, as the original answer was superseded by the amended and substituted answer, and was not offered in evidence, the instruction was properly refused. There is no question but that admissions made in the original answer were competent evidence against the defendant, but the contention is whether they were proper to be so considered without being introduced in evidence.
In considering this question, it may be well to first notice a few well-established rules relating to pleadings as evidence. It is unquestionably the rule that admissions made in the pleadings forming the issues being tried are proper to be considered without being introduced in evidence. They go to the court and jury, not as evidence, but for the purpose of showing what the issues are. As to such admissions, there is no issue; no proof is required; and the party making them is bound thereby. Raridan v. Central Iowa Railway Co., 69 Iowa 527, 29 N.W. 599; Hambell v. O'Neal, 39 Iowa 562. A party desiring to withdraw an allegation or admission made by him in a pleading may do so by amendment, or by a substituted pleading. Iowa County v. Huston, 43 Iowa 485; Johnson v. McGrew, 42 Iowa 555. Pleadings that have been superseded remain a part of the record in the case, even though withdrawn, and "may be introduced in evidence against him." Raridan v. Central Iowa Railway Co., supra. Admissions in a pleading that have been superseded are not conclusive upon the party making them. He may show that they were made inadvertently or by mistake. Ayres v. Hartford Fire Insurance Co., 17 Iowa 176; Mulligan v. Illinois Central Railway Co., 36 Iowa 181; Raridan v. Central Iowa Railway Co., supra. It will be observed that the following distinctions exist between the pleadings upon which the case is tried and those that have been superseded. The former are before the court and jury of necessity, without offer, not as evidence, but to show the issues to be tried; and admissions made therein are taken as true, and conclusive against the party making them. The latter are not necessarily before the court and jury and, if before them, are only as evidence, are not conclusive, and may be shown to have been made inadvertently, or by mistake, or, as stated in the instruction, may be contradicted or explained.
In the cases to which we have referred, and also in the instruction under consideration, a superseded pleading is regarded as evidence only, which, like any other evidence of admission, may be explained. Being only evidence, and subject to explanation, it seems that it should be introduced as any other evidence, and unless so introduced, should not be considered. To hold otherwise is to permit a party to spring a surprise upon his adversary, by presenting the admissions when the opportunity to explain has passed. Surely the law does not contemplate such an unfair practice that would deprive a party of the privilege of explaining how and why the admission was made. The value of this privilege is seen when the weight given to such admissions unexplained is remembered. It will not do to say that anything may be considered as evidence that has not been introduced as such, especially when it prevents the opposite party from rebutting it.
Cross v. Garrett, 35 Iowa 480, and cases following it, may seem at first view to be in conflict with this conclusion. In that case, The objection was overruled, and this court, in reviewing the ruling, said: "The motion for continuance was part of the record, and a proper matter of comment by the opposite party, without being formally offered in evidence." In further commenting on the ruling, the order in which cases should be argued is referred to, and stress given to the fact that the defendant did not ask permission to reply. The privilege asked was to read to the jury, and to comment upon, that which was competent evidence, but which had not theretofore been "formally offered." It was simply an application to be permitted to then introduce an item of evidence that had been omitted, and the court, in the exercise of a discretion which it had, permitted the evidence to be then introduced. Had the defendant insisted upon it, he had the undoubted right to reply by both proof and argument; but, not asking to do so, there was no error in granting the plaintiff's request. True, the court says that motion was a part of the record, and a proper matter of comment, "without being formally offered in evidence." Construing this language in the light of the plaintiff's request and defendant's objections, it means nothing more than that the evidence might then be introduced and commented upon, though not offered in the proper order. It is proper to say that, on the submission of that case, this...
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