Suter v. Page

• Decision Date: 19 May 1896
• Docket Number: Nos. 10,049 - (176).,s. 10,049 - (176).
• Court: Minnesota Supreme Court
• Parties: HENRY SUTER and Others v. EDWARD S. PAGE and Others.<SMALL><SUP>1</SUP></SMALL>

Page 444

64 Minn. 444

HENRY SUTER and Others v. EDWARD S. PAGE and Others.¹

Nos. 10,049 - (176).

Supreme Court of Minnesota.

May 19, 1896.

Appeal by plaintiffs from an order of the district court for Anoka county, Smith, J., denying a motion for a new trial as to defendants Page. Affirmed.

Michael & Peebles, for appellants.

Warner, Richardson & Lawrence, for respondents.

START, C. J.

This action was originally commenced in the district court of Ramsey county, and on April 27, 1895, judgment was entered by default against the defendant copartnership and the individual defendants, Edward S. Page, Charles H. Page, and Joseph B. Foltz. On August 22, 1895, on motion of the two defendants Edward S. and Charles H. Page, the judgment as to them was opened, and they were permitted to answer, and the place of trial was changed from Ramsey to Anoka county, the place of their residence, where it was tried, resulting in a verdict for them. None of the other defendants ever appeared in the action.

The plaintiffs appealed from an order denying their motion for a new trial, and assign two errors: First, that the trial court erred in refusing to permit the plaintiffs to cross-examine the defendant Foltz under the statute; second, that the district court of the county of Ramsey erred in changing the place of trial to Anoka county.

1. On the trial of the action against the defendants Page alone, the plaintiffs called the defendant Foltz for cross-examination, under the provisions of G. S. 1894, § 5659, which reads thus:

"A party to the record of any civil action or proceeding, or a person for whose immediate benefit such action or proceeding is prosecuted or defended, or the directors, officers, superintendent or managing agents of any corporation which is a party to the record in such action or proceeding may be examined upon the trial thereof as if under cross-examination, at the instance of the adverse party or parties, or any of them, * * * but the party calling for such examination shall not be concluded thereby, but may rebut it by counter testimony."

It was admitted that Foltz was in default, and had not appeared or answered in the case; thereupon the defendants Page objected to his being so cross-examined, for the reason he was not an adverse party to the plaintiffs. The objection was sustained, and the plaintiffs excepted. The ruling was correct.

The statute must be given a reasonable construction, and one in accord with its manifest purpose. The object of the statute was to permit a party to call his adversary at the trial, without making him his own witness, and elicit from him, if possible, material facts within his knowledge by a cross-examination, precisely as if he had already been examined on his own behalf in chief. It was not intended to permit a plaintiff to make one of his own witnesses a nominal party to the record, and then call him, and cross-examine him, not as an adverse party, but as a witness against the actual adverse defendants. In equitable actions and actions to enforce liens it often happens that there are merely nominal defendants, or defendants whose interests are the same as those of the plaintiff, and who join with him in demanding the same relief against other defendants, whose interests are adverse to both of them. It would be a...