Ward v. Atkinson

• Decision Date: 08 April 1912
• Parties: WARD v. ATKINSON.
• Court: Colorado Court of Appeals

123 P. 120

22 Colo.App. 134

WARD v. ATKINSON.

Court of Appeals of Colorado

April 8, 1912

Appeal from District Court, El Paso County; John W. Sheafor, Judge.

Action by Mary Atkinson, prosecuted after her death by Lynn S Atkinson, her executor, against A.J. Ward. From a judgment for plaintiff, defendant appeals. Affirmed.

W.D. Lombard and Roscoe P. Ady, both of Colorado Springs, for appellant.

Henry Trowbridge, of Denver, and O.E. Collins, of Colorado Springs for appellee.

CUNNINGHAM J.

Appellee as plaintiff below, brought her action in the county court in replevin to obtain possession of a certain automobile which she alleged defendant wrongfully withheld from her. The sole issue in the case was as to the ownership of the car. There is no dispute but that plaintiff purchased the car from one Marlow, and that she thereafter left the same in his possession. Defendant claims to have later purchased the machine from Marlow, and taken possession of it, and on the trial sought to prove that plaintiff had intrusted the machine to Marlow with authority to sell and dispose of the same. Plaintiff's evidence tended to show that she had intrusted the car temporarily to Marlow, who ran a garage, while she was absent from the city, but without giving him any authority to dispose of it. The evidence shows that defendant took possession of the machine on or about March 28, 1907, and under a redelivery bond held possession of it until December 23, 1908, the date of the second trial, which was in the district court. Two juries, one in the county and one in the district court, have found in favor of plaintiff, and motions for new trials in each instance have been denied by different judges. The errors argued in the briefs pertain to (a) the refusal of the trial court to grant a continuance; (b) the giving of certain instructions; (c) in refusing to grant the motion for a new trial, based largely on newly discovered evidence.

1. Five days before the case was called for trial, one of defendant's attorneys filed an affidavit, made by himself, supporting his motion for a continuance. This affidavit was deficient in the following particulars: (1) It failed to set up what the absent witness would swear to, if present. Cody v. Butterfield, 1 Colo. 377; Chase v. People, 2 Colo. 509; Glen v. Brush, 3 Colo. 26. (2) The affidavit failed to disclose the whereabouts of the witness, and omitted the message or letter which the affiant states that one of the absent witnesses had sent or written, stating that he would be present. Furthermore, it appears from the record that the defendant had known the whereabouts of the witness for three months or more, and on account of his absence made a similar application for a continuance when the case was tried in the county court; but in that application--that is, the one made to the county court--what was expected to be proven by the witness was set forth, and the plaintiff stipulated that if the witness was present he would swear to the state of facts to which by the showing made, it was stated he would testify, and the case went to trial, with the result that verdict and judgment went against defendant in the county court. (3) No attempt appears to have been made to take the deposition of this absent witness, and no request was made of the trial court for a short continuance for the purpose of taking his deposition. Neither does the affidavit show due or any diligence to procure the presence of the witness at the trial, as required by section 194 of the Code (R.S.). The affidavit in support of a motion for a continuance should ordinarily be made by the applicant, rather than his attorney; and, where the applicant cannot, for some reason, make the affidavit himself, the reasons of his inability should be made to appear. 4 Enc.Pl. & Pr. 875; 9 Cyc. 135. For the reasons stated, the trial court committed no error in denying the motion for a continuance.

2. No instructions were tendered by appellant; hence, if the instructions as given by the trial court were insufficient, which we do not intimate, it amounted, at most, to nondirection, and this feature need not be considered by us.

Error is assigned on the giving of instructions 2, 3, 5, 6, 7, and 7 1/2. We find no objections or exceptions whatever to any instruction in the abstract of record, and no objection whatever appears to have been interposed or saved as to instructions 7 and 7 1/2. We might, with propriety, decline to consider all assignments of error based on the instructions, for the reasons pointed out; and we must so decline as to instructions 7 and 7 1/2, to which no attempt whatever was made to save exceptions. The rules governing the preparation of abstracts are accessible to all practitioners, and have been in existence for a great many years; and almost every one of our 70 volumes of reported cases contain suggestions and admonitions concerning this matter and the proper practice as to making objections and saving exceptions. It would seem that by a little care attorneys ought to find no difficulty in following these rules and the suggestions so often made by our courts of review, at least substantially.

We perceive no error in the instructions; but, since one complaint with reference to them is vigorously debated, and many authorities are cited by appellant to support his contention, we shall consider it. It is urged that the trial court, in various instructions, intimated or insinuated that whether the defendant purchased the automobile from Marlow or his company was a question for the jury to determine. The only testimony offered on this point was that of the defendant himself. He testified positively and unequivocally that he purchased the machine of Marlow on a date subsequent to its sale by Marlow to plaintiff, and while it was in Marlow's possession, and while the plaintiff was out of the city. Appellant asserts that, since no testimony was offered in contradiction of defendant's testimony on the point that he had so purchased the machine, it was error to submit that question to the jury. There are several answers that might be made to this contention. For instance, the phrases in the instruction, of which complaint is made in the brief, were not specifically objected to. The exception was taken, in each instance (where any exception was taken at all), to the entire instruction; no attempt being made to call the court's attention to the objectionable phrase. To illustrate: Instruction 2 is somewhat lengthy. It properly advised the jury as to the burden of proof that rested upon the plaintiff; and no fault was found with this instruction by defendant, except that it contained a parenthetical phrase reading, "If you find he did purchase it." (In this phrase, the pronoun "he" refers to the appellant, and the pronoun "it" refers to the machine.) Instruction No. 2 contained three paragraphs. The phrase objected to is found in the second of these three distinct paragraphs, which together compose instruction No. 2. Defendant's objection was general, and went to the whole instruction, and does not appear in the abstract at all, but in an unabstracted portion of the bill of exceptions, rather than in the record. As to the proper manner of making objections to instructions, and as to the duty of both counsel and the trial court, on the trial below, with reference thereto, see Portland M. Co. v. O'Hara, 45 Colo. 416, 101 P. 773, and City of Denver v. Hyatt, 28 Colo. 129, 63 P. 403. But we prefer to dispose of the objection raised on its merits, and to base our ruling upon authority and reason, rather than upon the insufficiency of the record.

Whatever the rule may have been, at a time when interest absolutely disqualified a witness, as to the weight and sufficiency of the testimony of a single witness, it is not now the rule that the unsupported, though uncontradicted, testimony of a party to a contested suit is sufficient, as a matter of law to establish the fact concerning which he testifies. So, in this case, it was not only not error for the learned trial judge to submit the question of defendant's purchase of the car to the jury for its determination, but he discharged his plain duty by so doing. We believe the authorities, a few of which will be cited later, are in substantial accord on this question. In the present case (as, indeed, in substantially all jury cases generally), the jury was instructed as follows: "You are the sole judges of the weight and sufficiency of the testimony and the credibility of the witnesses who have testified; and in passing upon this question you may determine, and have the right to determine, from the appearance of the witnesses on the stand, their manner of testifying, their apparent candor and fairness, their apparent intelligence or lack of intelligence, and from all the circumstances appearing on the trial, which witnesses are the more worthy of credit, and to give credit accordingly. You may also take into consideration the interest, if any, which any witness may have in the result of this trial; and, if you believe from the evidence that any witness has willfully and corruptly sworn falsely to any material fact in the case, then you are at liberty to disregard the entire testimony of such witness, except in so far as...