Byrne v. Allen

OPINION OP THE COURT BY PREAR, J. After the ruling of the trial court that the garnishment must hold as against the receiver (see decision on former bill of exception, ante, p. 325) the Court ( a different Judge presiding) heard the plaintiff and garnishee, jury having been waived, and rendered judgment against the defendants and garnishee for $738.29, and $73.83 interest, and for costs. The defendants were in default and the receiver made no further contest in the trial court. The garnishee took various exceptions to the final judgment and now brings them here. Plaintiff’s counsel contends that the garnishee could not properly take these exceptions, for the reason that they relate to matters which concern only the plaintiff and the defendants, the garnishee being interested only in the question of the jurisdiction of the court over the subject matter and over the defendants, and over the question of the amount owing by him at the time of the garnishment. We need not consider what the general law is in this respect elsewhere, for our statute relating to garnishment (Comp. Laws, p. 280) expressly provides that the garnishee, “upon his desire, shall be admitted to defend his principal,” and, although there appears to have been no formal request by the garnishee for permission to defend his principals, or order by the court granting such permission, yet he appears to have taken, in fact, and without objection, such steps as amounted in effect to a defense of [329] bis principals, and it is stated in tbe bill of exceptions tbat tbe exceptions were taken by tbe garnisbee “for bimself and tbe defendants.” We tbink it must at tbis stage of tbe case be considered tbat be was acting for tbe defendants under tbe authority of tbe statute, as well as for bimself. These exceptions to tbe final judgment will be considered in order. Among them are several similar to those taken to tbe earlier ruling and brought here by tbe receiver and tbe garnisbee. (See former decision.) Tbe garnisbee took these to tbe final judgment for fear tbat tbe bill embodying tbe exceptions to tbe earlier ruling might be dismissed on tbe ground tbat tbat ruling was interlocutory. Tbis court entertained that bill of exceptions without considering its propriety, no objection having been made thereto. And without now considering whether tbe earlier ruling was interlocutory or final, or wlrat tbe proper practice is in such cases, we may remark tbat tbat ruling appears to have been regarded both by tbe trial judge and by the parties as final as to tbe question of preference as between tbe receiver and tbe plaintiff, and perhaps also as to tbe receiver’s right to further appear and contest the validity or amount of tbe plaintiff’s claim itself; at least tbe receiver took no further part in the case in tbe trial court, and appeal’s to have relied on tbe first bill of exceptions •entirely. The questions raised by these exceptions have already been considered with tbe conclusion tbat a new trial should be bad upon this phase of tbe case, and tbe reasons for so bolding need not be restated here. An exception was taken to the rendering of judgment in vacation, there being no stipulation that it might be rendered then. Tbe case was beard, jury waived, in term, and, although tbe prevailing rule elsewhere may be tbat in such cases tbe judgment must be rendered in term, yet we understand it to be otherwise by practice in some jurisdictions as well as by statute in others. It certainly has been tbe practice here for many years for courts to render in vacation judgments in cases beard, jury waived, in term. So far as we are aware, [330] tbe validity of such judgments has never hitherto been questioned here, and we feel obliged to hold that this practice has settled the rule. There was no error in proceeding with the trial or in rendering judgment pending the first bill of exceptions, or in rendering judgment at the same time the decision was made, or in the entry of judgment by the cleric four days later, no bill of exceptions having been presented. This course is authorized and the rights of all parties protected by our practice and the provisions of the statute. (Secs. 74-78, Ch. 57, Laws of 1892.) See also Herblay v. Norris, 9 Haw. 121. Exception was talcen to the allowance of the item “191-days’ work for horses, $78.00,” the contention being that this was a mistake for “19-J hours’ work for horses, $7.80.” It seems that this work was done at $4 a day of ten hours, and it would therefore be very easy to make the mistake of copying “19¿ days, $78.00” for “19-J hours, $7.80.” The evidence adduced for the defendants upon this item support their contention for “hours,” for their account kept concurrently with that of the plaintiff contains an item, “Or. by 19-J- hours with team, $7.80.” . But as this is not so much a question of the comparative weight of evidence adduced on the two sides as a question of whether the evidence on the plaintiff’s side alone is sufficient to support this contention, let us consider that evidence alone. This evidence must be taken as a whole. It is not sufficient if part of it taken by itself would support his case, if the effect of that part is overcome by other parts. The plaintiff testified that his bills were made from his ledger, into which a friend copied the items, some from slips of paper, others from the day books, and that he (plaintiff) thought the item of 19-J hours was a mistake and that the correct item is 19i¿- days as in the ledger. It thus appears that plaintiff’s testimony is not definite as to what is the fact, but is merely what he thinks over a year after the work was done and that his opinion is based on what a third person, a friend, had copied into the ledger. The best evidence is the plaintiff’s own slips [331] of paper and day books from which the third party copied into the ledger. The item appears in one of the day books as hours work horses.” That this is the item from which the copy in the ledger of “19-J days work with horses” was made, is clear from its date, its position with respect to other items, and the absence of any other item from which the copy could have been made. And the item was inserted in the same way by the plaintiff in an earlier bill presented by him to the defendants in Washington, “19-| hours work on road for horses.” It may be added that the accounts appear to have been loosely kept and that, as found by the trial Judge, there were a number of mistakes in plaintiff’s bill. On the whole we think the evidence such as to indicate a mistake of the facts or of the nature of the evidence on the part of the trial court rather than that the opinion was against the weight of the evidence, and that a new trial should be had unless the plaintiff remits $10.20 and a proportionate amount of interest. A. S. Harhoell, for plaintiff. L. A. Dickey, for garnishee. Exceptions were also taken to the allowance of the item of $185.96 for teaming, and to the refusal to allow a credit of $54.10 claimed to have been paid to the plaintiff’s attorney in Washington, and to the refusal to allow credits amounting to $28.64 and debts amounting to $21.26, dated after the appointment of the receiver. The facts as they appear are such that it is difficult if not impossible to say with much assurance of correctness exactly what should or should not be allowed in respect of these items, and after careful consideration we are unable to say from these facts that the trial court erred. A new trial should be had on the issue relating to plaintiff’s status upon which a new trial has already been ordered on the first bill of exceptions; if the decision upon that issue shall be for the receiver, the judgment rendered for the plaintiff should be vacated; but if for the plaintiff, then a new trial should be had upon all the issues unless plaintiff remits $70.20 and interest thereon.