Simeon Farwell & Company v. Cramer

• Decision Date: 17 October 1893
• Docket Number: 4478
• Citation: 56 N.W. 716,38 Neb. 61
• Parties: SIMEON FARWELL & COMPANY ET AL. v. CHRISTINA A. CRAMER
• Court: Nebraska Supreme Court

56 N.W. 716

38 Neb. 61

SIMEON FARWELL & COMPANY ET AL. v. CHRISTINA A. CRAMER

No. 4478

Supreme Court of Nebraska

October 17, 1893

ERROR from the district court of Holt county. Tried below before NORRIS, J.

AFFIRMED.

H. M Uttley, for plaintiffs in error:

It is improper for the court to require counsel to prejudge the facts he expects to develop by a certain class of testimony or for the court in any manner to indicate his idea of certain evidence proposed or offered. (Thompson, Trials secs. 218, 219; State v. Tickel, 13 Nev. 502; People v. Bonds, 1 Nev., 33; McMinn v. Whelan, 27 Cal. 300; State v. Harkin, 7 Nev. 381.)

Instructions which have a tendency to single out isolated facts and confine the attention of the jury to them to the exclusion of all other facts, are not only a misdirection, but are an infringement on the province of the jury as triers of the facts. (Chappell v. Allen, 38 Mo. 213; Grube v. Nichols, 36 Ill. 93; Raysdon v. Trumbo, 52 Mo. 35; Ellis v. McPike, 50 Mo. 574; Reese v. Beck, 24 Ala. 651.)

The twelfth instruction is erroneous because it misstates the rule that the courts will look with scrutiny, if not suspicion, upon sales or transfers of the property of a debtor in failing circumstances to members of his own family. (Lipscomb v. Lyon, 19 Neb. 515; Koch v. Rhodes, 10 Neb. 447.)

Evidence that the husband and wife, or either of them separately, were in possession of property, without other indication of ownership, is presumptive evidence of the title in the husband. (Keeney v. Good, 21 Pa. 349; Turner v. Brown, 6 Hun [N. Y.], 331; Block v. Nease, 37 Pa. 436; 2 Bishop, Married Women, secs. 128-140; Glann v. Younglove, 27 Barb. [N. Y.], 480.)

M. F. Harrington, contra.

OPINION

IRVINE, C.

D. L. Cramer was engaged in the mercantile business in Ewing. He seems to have failed, and his stock of goods was seized and sold upon attachments or executions. The defendant in error, the wife of D. L. Cramer, was at that time conducting a millinery establishment, and some time after the sale of Mr. Cramer's stock she moved her millinery goods into the store-room formerly occupied by Mr. Cramer, and shortly after began to add other lines of merchandise thereto until in the course of a few weeks she seems to have established what is termed a "general store." The plaintiffs in error, who were judgment creditors of Mr. Cramer, caused executions to be levied upon all of the goods except the millinery stock, upon the theory that the goods in fact belonged to Mr. Cramer, while the business was being conducted in the name of his wife for the purpose of defeating his creditors. Mrs. Cramer instituted the present action in replevin against the sheriff, for whom the judgment creditors were substituted as defendants. There was a verdict and judgment in favor of Mrs. Cramer, which the creditors seek to reverse.

1. Numerous errors are assigned. The first is misconduct of plaintiff's counsel. In support of this assignment attention is first called to the following circumstance: It was a part of the creditors' theory that when Mr. Cramer failed he in some way secreted from his creditors certain notes and accounts, and that the goods in question were purchased with the proceeds of these assets. A witness was interrogated in regard to these notes and accounts, and upon objection made, an offer was made to prove that notes and accounts to the amount of $ 10,000 had been by Cramer "taken out of his business," and that he had them in his possession after the attachments were levied. The court then stated that the objection was sustained unless the defendants "could trace the accounts or connect them." Thereupon counsel stated that he would agree to attempt, and believed he could connect these accounts and their proceeds with the plaintiff as having passed directly into her hands for his use and benefit. Opposing counsel then waived their objection, and the questions were answered. In what way this transaction can be construed as misconduct on the part of counsel is beyond our comprehension. The evidence offered was immaterial, unless the accounts or their proceeds were in some way traced into the goods. It was quite proper for the court to require an offer to so trace them before admitting the evidence, and when that offer was made it was the proper course for plaintiff's counsel to withdraw their objections.

The bill of exceptions shows that at the close of the testimony the plaintiff asked that all the books, exhibits, and records be taken by the jury to their jury room to be considered by them. Counsel moved to strike out this remark as incompetent and an unfair way of trying a case. This motion was overruled. It does not appear that the jury was permitted to take these documents, or that plaintiff's motion was ever acted upon. It was not misconduct entitling a party to a new trial for the adverse counsel to make a motion which should not be sustained. The record does not show that the language of counsel was unbecoming or unfair, and the remark having been made, the court was right in refusing to strike it from the record. It is claimed that throughout the trial counsel for plaintiff, in side remarks to the jury, insinuated that they were anxious that the jury should examine the books during their retirement. Nothing of this kind appears in the bill of exceptions. It is, however, intimated in the brief that the court refused to permit the reporter to take down these remarks. There is nothing in the record to show that there was any such refusal, and we must be governed by the record and not by statements in the brief, unsupported by the record.

2. Certain instructions are complained of. Of these, the first is as follows: "By the laws of this state a married woman, while the marriage relation subsists, may bargain for and purchase personal property such as the stock of goods in controversy, and sell the same and do all acts in relation to said property as though she were unmarried." As to this instruction it is complained, first, that under the married woman's act a feme-covert may only carry on a settled course of business on her sole and separate account, and that the instruction ignored these limitations. We think that the act in question was intended to give her the same dominion over her separate property that the husband has over his; to permit her to buy and sell and deal with her own in the same manner that a married man may do.

It...