Stratton v. Dole
| Decision Date | 19 June 1895 |
| Docket Number | 6100 |
| Citation | 63 N.W. 875,45 Neb. 472 |
| Parties | THOMAS A. STRATTON v. FLORENCE E. DOLE |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before TUTTLE, J.
AFFIRMED.
E. E Brown and G. M. Lambertson, for plaintiff in error.
W. R Starr, J. B. Strode, and R. D. Stearns, contra.
This was an action by the defendant in error, in the district court for Lancaster county, for the breach by the plaintiff in error (defendant below) of an alleged promise of marriage. It is also alleged as a part of the cause of action in the court below that the defendant therein, under promise of marriage, seduced and debauched the plaintiff, to her damage, etc. The answer, while denying the alleged seduction, admits a promise of marriage conditioned that the plaintiff should prove upon inquiry to be a woman of good character and reputation. It is further alleged that the defendant, subsequent to said promise, ascertained that the plaintiff was not a woman of good character and reputation, but that she was, on the contrary, immoral and unchaste, by reason of which he declined to consummate the agreement above mentioned. There was a trial in the district court, resulting in a verdict and judgment for the plaintiff therein, from which the defendant prosecutes proceedings by petition in error to this court.
The first of the errors assigned is the denial of a continuance on the motion of the defendant in order to enable him to secure the testimony of one Rowley, an alleged material witness. By reference to the defendant's affidavits we observe that he claims to have learned from the plaintiff's own confession on the 31st day of December, 1890, while the agreement was still in force, that she had been criminally intimate with certain persons, including the witness named, and which is the ground upon which he relies for a justification of his refusal. The action, as shown by the record, was commenced in the district court April 27, 1891, and a trial had therein in the month of April, 1892, resulting in a verdict, which was, on the defendant's motion, set aside and a new trial ordered. The motion for continuance above mentioned was made at the September, 1892, term, to-wit, September 20, and the order overruling it bears date of December 9, being the sixty-eighth day of the said term. On the 23d day of August of that year the deposition of said Rowley was taken before a notary public in the city of Racine, in the state of Wisconsin. During said examination the witness was asked whether there had at any time existed criminal relations between himself and the plaintiff, which question he refused to answer, assigning therefor that his relations with the plaintiff were his "own personal business." It was urged in the district court, and which contention is here renewed, that if sufficient time had been allowed for that purpose the defendant could, by means of proceedings for contempt in the courts of Wisconsin, have compelled the witness to answer and that his answers would have established the defense alleged. That an application for continuance is addressed to the discretion of the trial court, and that the ruling thereon will not be disturbed unless such discretion is shown to have been abused, are propositions so firmly established by the decisions of this court as to render a reference to them wholly unnecessary. Rowley, it should be noted, resided in this state continuously from the date of the alleged confession of the plaintiff in December, 1890, until the month of September, 1891, yet no attempt was made to secure his testimony until the month of August, 1892; nor had any steps been taken at the time of the overruling of the motion to compel him to answer the questions propounded. The district court evidently regarded the showing of diligence as insufficient to entitle the defendant to a further continuance, and such conclusion cannot be regarded as an abuse of discretion calling for interference by this court. But the district court was apparently influenced by another consideration, and which is of itself a sufficient justification of the ruling assigned, viz., the improbability of securing the evidence sought by resort to proceedings for contempt in the courts of Wisconsin. The law which authorizes the taking of testimony in one state for use in the courts of another state, and which requires the attendance of witnesses for that purpose, is founded upon comity, and is, as remarked by Lyon, J., in State v. Lonsdale, 48 Wis. 348, extrajudicial as to the courts of the state where such evidence is sought. It follows that the witness named, by refusing to answer in this cause, is, in the absence of a special statute of Wisconsin, guilty of no contempt of any court of that state. This conclusion is in harmony with the recognized rule as well as the decisions of this court. (See Johnson v. Bouton, 35 Neb. 898, 53 N.W. 995, and cases cited.)
The plaintiff was permitted, while a witness in her own behalf, to repeat an alleged statement of the defendant's mother relating to his, defendant's, financial standing, and which is assigned as error. In actions of this character evidence of the defendant's general reputation for wealth is admissible, not for the purpose of proving his ability to pay damages, but as tending to show the condition in life which the plaintiff would have secured by a consummation of the marriage contract. But it is not as a rule permissible to particularize the defendant's property. As said in Kerfoot v. Marsden, supra: "You may ask in a general way as to the defendant's property, but you cannot go into particular items as to his property." (See, also, Kniffen v. McConnell, supra; Chellis v. Chapman, 125 N.Y. 214, 26 N.E. 308.) Our first impression was that the admissions of the declarations mentioned was error requiring a reversal of the judgment; but a second reading of the record has convinced us that this is not a case for the application of the general rule, in view of Mrs. Stratton's relation to her son, the defendant, and the conspicuous part taken by her in promoting the marriage contract. The evidence bearing upon this aspect of the case is free from conflict and may be summarized as follows: About the 14th day of October, 1890, the plaintiff then residing with her parents in Red Willow county and engaged in teaching school in an adjoining district, received a letter from Mrs. Stratton inquiring if she was married or engaged, and soliciting an answer, saying that she, plaintiff, might hear something to her advantage. This communication was followed by a second and third within the period of a month. In the second, the writer mentioned the fact that her son, the defendant, had recently broken an engagement with a young woman in Iowa to whom he had been engaged, and that she, Mrs. S., would like to have him call on the plaintiff during a visit he was then contemplating to that part of the state. The third letter was to advise plaintiff of the date set for the defendant's visit. In one of the letters mentioned the writer referred to her friendship for the plaintiff resulting from a previous acquaintance, saying that her son thought a great deal as she did, and would like a girl whom she admired. The plaintiff accordingly, on the 14th day of November following, received the defendant as a suitor at her home, and which was the beginning of their personal acquaintance. During that visit of two days the engagement in question was made and the defendant at his request was received by plaintiff's parents as her affianced husband. After returning to his home in Lancaster county, near the city of Lincoln, he addressed the plaintiff a letter under date of November 18, in which he used this language. On the 29th day of December, following, the plaintiff, at the request of Mrs. Stratton, visited the latter at her home and remained until the evening of January 2. Further reference will be made to that visit in this opinion, but for the present it suffices that there was subsequently no personal communication between the plaintiff and the defendant or his mother. Returning to the examination of the plaintiff as a witness, we observe that after testifying to the engagement she was interrogated as follows:
Q. Did you learn anything of his financial condition prior to his coming to your house?
A. Yes, sir.
Q. Through whom?
A. Through his mother, his brother-in-law, and sister.
Q. What, if anything, did you learn through his mother as to his financial condition?
Objected to, as incompetent and hearsay. Overruled. Exception.
A. I learned that he had property in the city of Lincoln and that he also had 160 acres of land lying northeast of the city. She said they owned a half-section all together, that is, Mr. Stratton senior and Mr. T. A. Stratton, but that T. A. Stratton's property was worth more than the others, and she estimated the property at about $ 300,000, as near as I can remember.
The plaintiff had just been examined regarding the contents of Mrs. Stratton's letters, and the utmost that can be claimed by defendant for the evidence quoted is that we are left in doubt whether it refers to the written correspondence or to information previously communicated to the witness, a doubt which is not removed by the other evidence in the record. Prior to ...
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