Stratton v. Nye

• Decision Date: 22 June 1895
• Docket Number: 5691
• Citation: 63 N.W. 928,45 Neb. 619
• Parties: JAMES W. STRATTON v. W. A. NYE ET AL
• Court: Nebraska Supreme Court

63 N.W. 928

45 Neb. 619

JAMES W. STRATTON v. W. A. NYE ET AL

No. 5691

Supreme Court of Nebraska

June 22, 1895

ERROR from the district court of Saunders county. Tried below before BATES, J.

REVERSED AND REMANDED.

Good & Good and M. B. Reese, for plaintiff in error.

George I. Wright, contra.

OPINION

NORVAL, C. J.

This suit was brought by James W. Stratton against W. A. Nye and David Fraser upon a promissory note for $ 204, purporting to be signed by them, payable to the order of C. W. Sanford, and by him indorsed to the plaintiff. No service of summons was had upon Nye, nor did he appear to the action. Fraser answered by a general denial, his defense being that the note, as to him, was a forgery. There was a trial to a jury with a verdict and judgment in favor of the answering defendant, to reverse which the plaintiff brings the cause to this court on error.

Error is alleged in that the court permitted, over the objection and exception of the plaintiff, counsel for the defendant in his opening statement to the jury to say that "W. A. Nye in 1889 was the owner of one-half interest in a corn sheller in connection with Robert Gilchrist; that some time in July of that year he sold that half interest to Mr. Gilchrist, and after this he came to town and mortgaged the same half interest which he had sold to Mr. Gilchrist." The foregoing matters rehearsed to the jury, even if true, were entirely irrelevant to the issues in the case. They could not, if established by evidence, in the least degree tend to show that the name of Fraser attached to the note was not his genuine signature. This is too plain for argument. It is not only the province, but the duty, of the trial court to see to it that counsel in his opening address to the jury confines his remarks to a statement of the nature of the issues to be tried and an outline of the evidence by which the cause of action or defense is to be established. In such opening statement it is the duty of counsel to refrain from rehearsing irrelevant and prejudicial matters or facts which are foreign to the issues; and where counsel abuses the privilege of advocacy in his opening by rehearsing irrelevant and prejudicial matters, the court should, especially when objection is made, reprove the practice in the hearing of the jury, and as far as possible remedy the mischief by instructing the jury to disregard the prejudicial statements. The trial judge must necessarily have a broad discretion in such matters; but if counsel abuse their privilege, or the trial court its discretion, to the prejudice of a party, it is sufficient ground for a reversal of the case. (1 Thompson Trials, secs. 264-266; Scripps v. Reilly, 35 Mich 371; Hennies v. Vogel, 87 Ill. 242; Ayrault v. Chamberlain, 33 Barb. 229.) In the case at bar, counsel for the defendant...