Sweet v. Wright

• Decision Date: 17 December 1881
• Citation: 57 Iowa 510,10 N.W. 870
• Parties: SWEET, SR., v. WRIGHT & SPENCER AND OTHERS.
• Court: Iowa Supreme Court

57 Iowa 510

10 N.W. 870

SWEET, SR.,

v.WRIGHT & SPENCER AND OTHERS.

Supreme Court of Iowa.

Filed December 17, 1881.

Appeal from Marshall circuit court.

This action is brought upon an indemnifying bond, executed by Wright & Spencer as principals, and T. J. Fletcher as surety, to procure a levy by the sheriff of an execution in favor of Wright & Spencer, and against W. Martin & Co., W. Martin, and J. B. Sweet, Jr., upon certain goods as the property of J. B. Sweet, Jr. The plaintiff claims that the property levied upon belonged to him, and that the goods were taken from him and have not been returned, whereby he has sustained damage in the sum of $1,000. The defendants admit the execution of the bond and the levy, but deny that the property levied upon belonged to the plaintiff, and allege that it belonged to J. B. Sweet, Jr., one of the execution defendants, and that the alleged ownership of J. B. Sweet, Sr., was fraudulent, and assumed by the plaintiff with fraudulent intent to hinder, delay, and defraud the creditors of J. B. Jweet, Jr. There was a jury trial, resulting in a verdict and judgment for the defendants. The plaintiff appeals.Brown & Binford, for appellant.

P. M. Sutton, for appellees.

DAY, J.

1. The question in controversy is whether the stock of goods was the property of J. B. Sweet, Sr., or of J. B. Sweet, Jr., against whom the writ of execution issued. The plaintiff introduced as a witness one Daniel Barber, and asked the following question: “What is your occupation, and what was it at that time?” To this the witness answered: “I was at work in the store. I don't recollect just when I commenced in the fall. I had been at work from the fall through. Mr. Sweet employed me; the young man.” The plaintiff then asked the following question: “What was it Mr. J. B. Sweet, Jr., said to you, at the time you were employed, as to whom he employed you for?” The defendants objected to the question as immaterial and incompetent. The objection was sustained. The plaintiff excepted, and assigns the ruling as error. The witness, it is to be noticed, went beyond a proper answer to the interrogatory propounded, and, in addition to stating what he was doing, he stated who employed him. Now, if J. B. Sweet, Jr., at the time of the employment, stated to the witness that he employed him, not for himself, but for J. B. Sweet, Sr., this statement would constitute a part of the res gestœ, and be in every respect competent and most material. In excluding this testimony it is clear to us that the court erred.

2. J. B. Sweet, Jr., a witness for the plaintiff, was introduced, examined, cross-examined, and permitted to retire, and other witnesses were examined. Afterwards the defendant was permitted, against the objection of plaintiff, to recall J. B. Sweet, Jr., for further cross-examination. This action the plaintiff assigns as error. It rests in the sound discretion of the court whether a witness shall be called back for re-examination. Barker v. Bell, 46 Ala. 216. Besides, in this no material evidence was obtained upon the further cross-examination.

3. The defendants made an affidavit and motion for a continuance on the ground of the absence of a witness, one H. L. Spencer. The plaintiff admitted that the witness would, if present, testify to the facts stated in the affidavit; and the motion for continuance was thereupon overruled. Against the objection of the plaintiff the defendants were permitted to read from the affidavit for continuance as follows: “That said J. B. Sweet, Jr., told said H. L. Spencer that the old man--meaning his father, J. B. Sweet, Sr.--was simply giving him the use of his name, and that everbody knew that his father was good, and if the business was run in his father's name no one would doubt his ability to pay; that the business was his, and was only run in his father's name for protection.”

The admission of this evidence is assigned as error. It has been held by this court that declarations of a party in possession of property, explanatory of the possession, and claiming title in himself, are competent. Ross v. Hayne, 3 G. Greene, 211;Taylor v. Lusk, 9 Iowa, 144; Blake v. Graves, 18 Iowa, 312;Stevens v. Williams, 46 Iowa, 540. See, also, Roebke v. Andrews, 26 Wis. 311. The dissenting opinion of Dixon, C. J., in the case last cited, shows that there is much conflict upon the question, and this court has said in Stevens v. Williams, supra, that, were the question res integra, we might feel inclined to hold declarations in favor of the title of one in possession inadmissible. In Taylor v. Lusk, 9 Iowa, 446, it is said that the cases all agree in holding that the declaration...