United States v. Alexander

• Decision Date: 13 February 1888
• Citation: 2 Idaho 386,17 P. 746
• Parties: UNITED STATES v. ALEXANDER ET AL
• Court: Idaho Supreme Court

17 P. 746

2 Idaho 386

UNITED STATES v. ALEXANDER ET AL

Supreme Court of Idaho

February 13, 1888

PLEADING-VERIFICATION-PRACTICE.-Under our practice, generally, where the complaint is not verified a general denial by defendant puts in issue the substantive allegations of the complaint, but where the action is brought upon a written instrument, and a copy of such instrument is set out or annexed to the complaint, the genuineness and due execution of the instrument are deemed admitted unless the answer specifically denies the same and is verified.

EXCEPTIONS-STATEMENT.-A bill of exceptions settled and signed by the trial judge will be treated as such, although it is called a statement on motion for a new trial.

PRACTICE-DEMURRER.-Where the record shows that a general demurrer was filed, but is silent as to any disposition of the same, the presumption will be indulged on appeal that the demurrer was overruled or abandoned.

PRACTICE-OFFER OF EVIDENCE.-An offer or oral proof being made and rejected and exceptions duly taken, the appellate court must be satisfied from the record that the offered evidence was material or tended to support some issue involved before it will be treated as error.

CHALLENGE-JURORS-DISCRETION.-Great latitude of discretion is allowed to the court in the trial of challenges for cause, and where on an examination for cause a juror states in substance that he has an opinion in favor of the defendants, but in spite of that opinion he could act upon the evidence and law of the case and the juror was rejected, this court will not interfere with the discretion of the trial court, even though the members of this court should believe from the record that the juror so excluded was competent.

NUMBER OF PEREMPTORY CHALLENGES.-The legislature did not intend where in an action there are several parties on either side that each individual should have four peremptory challenges, but that they should join and have one set on either side.

CHALLENGES FOR CAUSE-EXAMINATION.-Where the record shows that a party was precluded from examining a juror for cause, and no examination of the juror was had, held, that a substantial right of the party was denied for which a new trial will be granted.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Reversed and remanded.

Winston & Reid and Moody & Curtis, for Appellants.

If an allegation can be made the subject of a material issue, it should not be stricken out. (Green v. Palmer, 15 Cal. 412, 76 Am. Dec. 492.) The plaintiff demurred in general terms. Either all or no part of the answer should have been stricken out on his demurrer. (Ferrier v. Ferrier, 64 Cal. 23, 27 P. 960.) If a complaint contains several counts, and the defendant demur to the whole complaint, the demurrer should be overruled, if there is one good count in the complaint, although the other counts may be bad. (Stoddard v. Treadwell, 26 Cal. 294; Griffiths v. Henderson, 49 Cal. 567; Pfister v. Wade, 69 Cal. 133, 10 P. 369; White v. Lyons, 42 Cal. 279; McPherson v. Weston, 64 Cal. 281, 30 P. 842.) A general demurrer to an answer cannot be sustained when there is one count that presents an issue for trial. (Board v. Long, 8 Colo. 438, 8 P. 923; Caldwell v. Ruddy, ante, p. 1, 1 P. 339.) The sufficiency of the justification of the postmaster was a matter for the jury to try. (Granniss v. Irwin, 39 Ga. 22.) Parol evidence is admissible, not only to explain, but to apply, the writing. (Randolph v. Helps, 9 Colo. 29, 10 P. 245; Suffern v. Butler, 21 N. J. Eq. 410.) If the ambiguity is raised by extrinsic evidence, it may be removed in the same manner. (Reynolds v. Jourdon, 6 Cal. 109; Reamer v. Nesmith, 34 Cal. 624; Callahan v. Stanley, 57 Cal. 476.) The plaintiff, having made the paper writing purporting to be a copy of the bond sued on a part of the complaint, and the court having allowed the same in evidence, against the objection of defendants, all the words and figures written therein or indorsed thereon are proper subjects of argument and comment by counsel. (Hobart v. Tyrrell, 68 Cal. 12, 8 P. 525; Murdock v. Brooks, 38 Cal. 596; People v. Hagar, 52 Cal. 172.) Each of the five defendants was entitled to four peremptory challenges. (Gen. Laws, 11th Sess., sec. 367; Civ. Code, sec. 4379.) The defendants having introduced no testimony, the court erred in refusing to allow their counsel to conclude the argument to the jury. (Gen. Laws, 11th Sess., sec. 371; 18 Cent. L. J. 363.)

James H. Hawley, United States Attorney.

A statement on appeal must specify the particular points upon which the appellant will reply upon appeal, and so much of the evidence as is necessary to explain said points. (Rev. Laws, sec. 4441, subds. 3, 4; Barrett v. Tewksbury, 15 Cal. 354; Burnett v. Pacheco, 27 Cal. 408; Mining Co. v. Irvine, 32 Cal. 303; Ferrer v. Insurance Co., 47 Cal. 416; Spencer v. Long, 39 Cal. 700; Brumagim v. Bradshaw, 39 Cal. 33.) It is not sufficient to state matters rendering it possible that evidence may have been received that was improper, but the evidence itself must be stated in the statement. (Bush v. Taylor, 45 Cal. 112; Doyle v. Franklen, 48 Cal. 540; Idaho Rev. Laws, sec. 4820; Brown v. Gray, 6 Jones (N. C.), 103, 72 Am. Dec. 563; Hilliard on New Trials, c. 13, secs. 17, 25.) A juror is not disqualified by having expressed an opinion on a question involved in the litigation. (Hilliard on New Trials, 147; Royston v. Royston, 21 Ga. 161.) Because a juror answers he can act impartially on the testimony, the court is not bound to accept him. (Hilliard on New Trials, 149.)

BRODERICK J. Hays, C. J., and Buck, J., concurring.

OPINION

BRODERICK, J.

This action was commenced against the sureties on the official bond of Isaac N. Hibbs, late postmaster at Lewiston, to recover the sum of $ 10,000, alleged to have been received from the United States by said Hibbs, as postmaster, and which he failed and refused to account for. The complaint is in the usual form, is not verified, but a copy of the bond is annexed thereto, and made a part of the complaint. The cause was tried at the December, 1886, term of said court, and resulted in a judgment against the defendants for the sum demanded. The defendants moved for a new trial. The motion was overruled, and from the judgment, and the order overruling the motion for a new trial, the defendants appealed.

The record consists of the judgment-roll, and what purports to be a statement on motion for a new trial. Upon the argument here, counsel for respondent contended that the statement was not properly made and should be disregarded. Under our statutes as construed by this court, there is no substantial difference between a statement and bill of exceptions. The name given to the document is of little consequence. If it brings here the rulings or decisions of the court below, the objections and exceptions thereto, and is duly certified, it should be treated for what it is and not for what it may have been called. In this case it is clearly a bill of exceptions, is certified as such, and must be so considered. (Bradbury v. Improvement Co., ante, p. 239, 2 Idaho 239, 10 P. 620; Schultz v. Keeler, ante, p. 333, 2 Idaho 333, 13 P. 481.)

The first assignment of error which we shall notice is the decision of the court in striking out, on motion, all the answer except the first paragraph thereof. This paragraph is, in substance, a general denial. Counsel for appellants argued at the bar that the several allegations of the answer, except the general denial, were stricken out on general demurrer, and that, as the answer contained a denial, and was good thus far, the demurrer should have been overruled. We were "almost persuaded" that this point was well taken. It was a good argument, and well put, but the record is at variance with the argument. The transcript shows that a part of the answer was stricken out on motion, and not on demurrer. It is true a demurrer was filed, and the record is silent as to what disposition was made of it. In such case, on appeal it will be presumed that the demurrer was either abandoned or overruled. (Guthrie v. Phelan, ante, p. 95, 2 Idaho 95, 6 P. 107.) After the motion to strike out was disposed of, the defendants had left a general denial of the allegations of the complaint, and a trial was had of the issues thus joined. The answer was not verified, and hence did not put in issue the execution of the bond sued on. Section 4200 of the Code of Civil Procedure provides that "when an action is brought upon a written instrument, and the complaint contains a copy of such instrument, or a copy is annexed thereto, the genuineness and due execution of such instrument are deemed admitted unless the answer denying the same is verified." To have put in issue the execution or genuineness of the instrument, a specific, verified denial was necessary. This disposes of the objections raised to the introduction of the original bond. Its execution and genuineness having been admitted by answer, it would seem unnecessary to have offered it in evidence unless for the purpose of having it placed among the files, and hence no objection would lie to its reception.

Under the pleadings, the issues to be tried were whether Hibbs had as postmaster, received this amount of money from the government, and had failed and refused to account for the same, or any part thereof, and whether demand had been duly made. In this state of the case the plaintiff was put to the proof of these allegations, and the defendants, under their general denial, could have introduced evidence to negative each and all of these averments. In other words, we understand that, under our practice generally, where a complaint is not verified, a general denial puts the...