Wheeler v. Wallace

• Decision Date: 16 April 1884
• Citation: 53 Mich. 355,19 N.W. 33
• Court: Michigan Supreme Court
• Parties: WHEELER v. WALLACE.

19 N.W. 33

53 Mich. 355

WHEELER v. WALLACE.

Supreme Court of Michigan

April 16, 1884

It is possible for a judge to deprive a party of a fair trial, even without intending it, by his manner of trying the case; and when it is apparent that a fair trial has not been had, a court of review should give relief for that cause as for any other.

Where a sale of stock is fraudulent, and the sale is speedily attacked, any natural increase which has taken place may be claimed; but three years is too long a time for such a privilege to continue.

Unless a party whose property is being sold at sheriff's auction actively interferes to prevent its bringing its fair value he cannot be debarred from showing that at the sale it did not sell for such value.

Error to Washtenaw.

E.D. Kinne, for plaintiff and appellant.

Sawyer & Knowlton, for defendant.

COOLEY C.J.

This action was brought for the conversion of certain livestock farming implements, and other farm property which defendant as sheriff of the county of Washtenaw, had taken from the possession of plaintiff by virtue of writs of execution against Harvey M. Wheeler, the father of the plaintiff, and on a claim that it was the property of said Harvey. It was conceded that the property had mostly belonged to said Harvey, but the plaintiff claimed to have purchased it from him, and the defendant contested the purchase as fraudulent. The purchase was made in September, 1878, and was accompanied by a lease for two years from said Harvey to the plaintiff of a farm of 120 acres of land in the township of Pittsfield, for the rent of which the plaintiff was to board and lodge the family of said Harvey, including his wife and two daughters, and to pay the interest on a mortgage of $3,000. He was also to pay all taxes, and to keep the premises in good repair. The executions on which the property was taken were issued more than three years after the plaintiff had made his purchase. Some of the live-stock was the natural increase of that which he had bought, and some of the other property he claimed to have obtained in trades, by way of exchange, while his title was uncontested.

On the trial the defendant had judgment, and the plaintiff brings error. A large number of exceptions are taken, some of which relate to the manner in which the trial was conducted by the circuit judge, and others to his rulings on points of law raised by counsel. It is complained that the course of the circuit judge was such as to render it impossible for the plaintiff to have a fair trial, or the unbiased judgment of the jury upon the facts; and certain remarks of the judge in the course of the trial, as well as the whole charge, are incorporated in the bill of exceptions, to show that such was the fact. It is very unusual to have exception taken on writ of error to the manner and deportment of the trial judge in the conduct of the trial, and under ordinary circumstances a court of review would not scrutinize very closely his methods when no error in his rulings was alleged. Still, it is possible for a judge to deprive a party of a fair trial, even without intending to do so, by the manner in which he conducts the case, and by a plain exhibition to the jury of his own opinions in respect to the parties, or to their case; and when it is apparent that a fair trial has not been had, a court of review should give relief as soon for that cause as for any other. The fact that the duty to do so is unusual or unpleasant, is no reason for declining it.

In this case we are satisfied the plaintiff has not had a fair trial. In saying this it is not necessary to impute to the judge any purpose to be a partisan in the case, or otherwise unfair. It is not likely he intended to try the case with less than his customary urbanity and courtesy; and when he brings before the jury, as he does in his charge, the familiar figure of the goddess of justice, with her scales nicely weighing and scrutinizing the evidence, it is to be assumed that he meant to be as impartial himself as he directed the jury to be. It is, nevertheless, possible for a judge, however correct his motives, to be unconsciously so disturbed by circumstances that should not affect him, as to do and say, in the excitement of a trial, something, the effect of which he would not at the time realize, and thereby accomplish a mischief which was not designed. Possibly, such circumstances may have existed in this case.

The plaintiff took the stand as his own witness, and gave evidence of the lease and sale, and of what he did in respect to the property afterwards. The evidence is not given in full, and what appears does not fully explain itself. Among the questions asked was: "Did you know anything about the Doran judgment?" Answer. "No, sir." Q. "You did not know anything about that?" A. "No, sir." Q. "There was $400 or $500 levied on the property that you never heard of?" A. "I never knew anything of it." The counsel for the plaintiff then said: "That is not fair. He said he did not know of it in 1878, but he did in 1880." To this the counsel for the defendant replied: "He has sworn he did not know of it at all." The plaintiff's counsel responded: "You get him to swear that by putting your question in such a way." Here it is seen that the plaintiff's counsel is insisting that the witness understood the questions to relate to the time of the purchase, and that it was unfair for defendant's counsel to put questions which the witness would so understand, intending thereby to obtain answers which might be understood to relate to a subsequent time. Whether this intimation of unfairness was well founded or not we cannot determine by the record; but the judge here remarked: "That is one of the glorious rights of cross-examination, and you cannot interfere with it. That is one of the things you can go to the jury on." Counsel for the Plaintiff: "We did not ask anything about that." The Judge: "No matter. You say he makes two different statements about this transaction,"--a palpable error on the part of the judge,--"and you can follow it up; that is one of the ways of measuring a witness as to how he is testifying, and should not be interfered with so as to show to the witness that he has fallen into a trap set by the other side." To this the response of counsel was very pertinent and very proper: "I did not suppose courts of justice were made to set traps, and I except to the remarks of the court."

While the plaintiff was still upon the stand the defendant offered in evidence three certain chattel mortgages made by Harvey M Wheeler. Plaintiff's counsel objected to their reception as not proper on cross-examination of the witness, and also because they were immaterial; upon which the judge remarked: "I cannot stop to give reasons. It is plain enough to me that, while they are collateral papers, when it becomes important or necessary in any manner to cross-examine a witness, then the party against whom a witness is called has a right to put in his hands a letter or document, or any thing on which he wishes to cross-examine, so that it shows a general bearing upon his testimony." To this counsel for the plaintiff replied: "The papers which he puts in the hands of the witness are not...