Whipple v. Preece

• Decision Date: 08 March 1902
• Docket Number: 1316
• Citation: 67 P. 1072,24 Utah 364
• Court: Utah Supreme Court
• Parties: EDWARD WHIPPLE, Appellant, v. WILLIAM PREECE, JOSEPH TOLLIVER, LESLIE ASHTON, LYCURGUS JOHNSON, J. W. JOHNSON, A. N. JOHNSON, and SNELLAN JOHNSON, Respondents

67 P. 1072

24 Utah 364

EDWARD WHIPPLE, Appellant, v. WILLIAM PREECE, JOSEPH TOLLIVER, LESLIE ASHTON, LYCURGUS JOHNSON, J. W. JOHNSON, A. N. JOHNSON, and SNELLAN JOHNSON, Respondents

No. 1316

Supreme Court of Utah

March 8, 1902

Appeal from the Fourth District Court, Uintah County.--Hon. J. E Booth, Judge.

Action to recover damages for the conversion of certain property alleged to be of the value of $ 6,000. From a judgment in favor of the defendants, the plaintiff appealed.

AFFIRMED.

E. A Walton, Esq, and Messrs. Powers, Straup & Lippman for appellant.

When the jury appeared defendant challenged the panel because summoned by Sheriff William Preece, one of the defendants in the case. We insist that it is not competent for a party to an action to have anything to do with the making up of the tribunal who shall decide the case. Such a practice is not in accordance with the common law and the practice of this State; neither is it in conformity with American ideas of propriety. When the sheriff is a party to an action, process shall issue to and be served by a constable. Revised Statutes 1898, sec. 597.

In California, where there was similar legislation (Cal Political Code, 4191-2) to the effect that a person other than the sheriff should serve process in such cases, the court says, "The sheriff being the party interested there was an obvious propriety, if the plaintiff insisted on it, in trying the case by a jury in the selection of which he had no agency." Pocher v. Hunsacker, 14 Cal. 120.

In Woods v. Rowan, 5 Johnson's Rep. 133, the array was challenged because the venire had been served by the plaintiff, he being the sheriff. The court says, that "notwithstanding the sheriff does not select the jury, but can summon only those persons previously balloted by the clerk, yet he is disqualified. The challenge was well taken."

Section 597, Revised Statutes, above cited, is in substance identical with section 350, Code of Iowa 1873. In Minott v. Vineyard, 11 Iowa 91, this provision was construed to disqualify a deputy sheriff to serve a writ issued against his principal.

In Gollobitsch v. Rainbow, 84 Iowa 567, it was construed to disqualify a deputy sheriff from impaneling a jury in a case where the sheriff was a party. To the same effect are Cranmer v. Crawley, 1 N. J. L. 43; Munshower v. Patton, 10 Serg. & R. 334.

The practice obtaining in this case has been well characterized by Judge Thompson as "an unseemly spectacle and one calculated to impair public confidence in the administration of justice." Thompson & Merriam on Juries, sec. 132.

The American rule of cross-examination as established by the Supreme Court of the United States and most of the State courts is: The cross-examination of a witness is limited to an inquiry as to the facts and circumstances connected with the matters stated in his direct examination and applies to parties as well as to other witnesses. Underhill Ev., p. 481; 1 Wharton Ev., sec. 529; 3 Jones Ev., sec. 445; Abbott's Civil Trial Brief (2 Ed.), 160; Wills v. Russell, 100 U.S. 621; Elbuaker v. Buckley, 16 Serg. & R. 77; Floyd v. Bovard, 6 Watts & S. 75; Bell v. Prewitt, 62 Ill. 362; Phila. R. R. Co. v. Stimpson, 14 Pa. 448; Aitken v. Mendenhall, 25 Cal. 212; People v. Miller, 33 Cal. 99; 1 Thompson on Trials, sec. 437; McFadden v. Mitchell, 61 Cal. 148.

This well-established rule was persistently violated and defendants were allowed to cross-examine with respect to matters involved in their affirmative defense.

Messrs. King, Burton & King for respondents.

The first point raised in the motion to dismiss the appeal is that the bill of exceptions filed does not comply with the provisions of sections 3384 and 3286 of the Revised Statutes of Utah, 1898.

This question has heretofore been presented to this court in the recent case of Wild v. Union Pacific R. R. Co., 23 Utah 265, 63 P. 886. In this case the court observed: "The bill of exceptions contains 608 pages of typewritten matter, and consists of the reporter's notes, the questions asked the witnesses and their answers, side-bar conversations and remarks of the judge and counsel which occurred during the trial..... Such a bill does not conform to the requirements of sections 3284 of the Revised Statutes 1898. People v. Getty, 49 Cal. 581; Caldwell v. Parks, 50 Cal. 502. . . . Under the precedent of Caldwell v. Parks, supra, we would be justified in affirming the judgment without regard to the bill of exceptions, and will do so in all cases hereafter appealed, unless some fatal error which is not required to be shown by the bill of exceptions appears upon the face of the record."

The general rule of cross-examination is undoubtedly as counsel contend, but this rule has its exceptions. The cases cited by counsel in the main uphold the general rule, but are inapplicable to the questions involved in this case, while the text-books quoted sustain our position.

Mr. Wharton presents one of the exceptions as follows: "There are other cases in which when fraud or mistake is probable though not proved, it is proper to give counsel great latitude, as that the fraud or mistake if there be such should be tracked. . . . In view of these considerations, courts of review are unwilling except in extreme cases to reverse the rule as to the limits in the concrete of a cross-examination." Wharton's Evidence, sec. 528; Thornton v. Hook, 36 Cal. 223; Harper v. Lamping, 33 Cal. 646; Jackson v. Fether River W. Co., 14 Cal. 22; Jacobsen v. Metzger, 35 Mich. 103; Jennings v. Prentice, 39 Mich. 422; Anderson v. Walter, 34 Mich. 114; Kalk v. Fielding, 7 N.W. 188 (Wis.) .

Assignments numbered from 66 to 80, inclusive, are discussed, but the argument is wasted, as there is not a single exception to the charge of the court, that is available for any purpose whatever. In view of the uniform and numerous decisions of this court holding that exceptions of this general character will not be considered, we deem the discussion of the alleged errors attempted to be assigned unnecessary. In the case of Scott v. Mining Co., 18 Utah 492, the exception was as follows: "The defendant duly excepts to that part of the charge containing plaintiff's request No. 2," almost identical in form with the exception taken in the case at bar, and the court refused to consider it. Mark v. Tompkins, 7 Utah 425; People v. Berlin, 10 Utah 41; Lowe v. Salt Lake City, 13 Utah 99; Wilson v. Sioux Con. M. Co., 16 Utah 398.

BARTCH, J. MINER, C. J., and BASKIN, J., concur.

OPINION

BARTCH, J.

--This action was brought to recover damages for the conversion of certain property alleged to be of the value of $ 6,000. The complaint, in substance, charges that the defendants unlawfully and maliciously took and carried away the property, and converted it to their own use. After denying this, the answer avers that the defendant Preece was the sheriff of Uintah county, where the transaction occurred; that defendants Tolliver and Ashton were his deputies; that as such officers they seized and sold the property under and by virtue of executions issued out of the district court to satisfy valid and subsisting judgments against the owners and in favor of the Johnsons, the other defendants; and that the plaintiff and one Asenath Chadwick were the judgment debtors, and owners of the property in question. From the evidence it appears that defendants Johnson had a judgment against the plaintiff for the amount of $ 291.18, and one against Asenath Chadwick for $ 2,694,21. The judgments and the executions issued thereon were in the usual form. Under these executions the sheriff sold the property in controversy, consisting of horses and other personal property, and made his returns. It appears that in 1895 Asenath Chadwick and the plaintiff formed a partnership, which continued at least until the time of the commencement of the suits resulting in the judgments--some of the evidence tending to show that it continued longer--and that the property in dispute was the property of the partnership. The plaintiff, however, introduced evidence for the purpose of showing a purchase by him of the entire interest in the property prior to the issuance of the executions, and the defendants introduced evidence strongly tending to show that, if such purchase was made, it was fraudulent and void as to creditors, that the property at the time of sale still belonged to the partnership, and that each partner had an interest in it. The property, it seems, was exposed to sale under each execution, and the interest therein of each judgment debtor sold. Some horses belonging to other parties were also sold, but as to them the defendants made settlement. At the trial the jury returned a verdict, "No cause of action," against the plaintiff, who thereupon appealed.

Counsel for the respondents have challenged the standing of the appellant in this court by a motion to dismiss the appeal on the ground, among other things, that the bill of exceptions does not comply with the provisions of section 3286, Revised Statutes 1898. The same question here presented was before this court in the case of Wild v. Railroad Co., 23 Utah 265, 63 P. 886, and it was there held that a bill of exceptions like the one at bar, in which "redundant and useless matter" is not eliminated, does not conform to the statute. Since, however, this bill was prepared and settled before that decision was made, and from the view we take of this cause, we have concluded to deny respondent's motion, and decide the case upon its merits.

The appellant has assigned very numerous errors, but upon examination most of them are found to be absolutely without merit, and require no special reference. The assignments from 3 to 18, inclusive, relate to the...