Johnston v. Hamburger

By the Court, DIXON, 0. J. The motion of the plaintiff in error (defendant below), to dismiss the suit because no proper summons had been issued and served, was properly overruled. The summons was in strict compliance with sections two and three of chapter 124 of the Revised Statutes. Those sections do not require that it shall be tested in the name [177] of the chief justice or presiding judge of tbe court in which the trial is to be had, nor that it shall be, subscribed by clerk-of such court. The affixing of the seal is expressly dispensed with. The process prescribed by them cannot be regarded as a writ or process “issuing, out of the courts of record of this state,” within the meaning of chapter 136, and hence the provisions of that chapter are inapplicable to it. The manner prescribed for the commencement of civil actions seems entirely inconsistent with the idea that the summons must be tested in the name of the judge, and particularly that it must be subscribed by the clerk. The sections referred to, specifically direct .how they shall be issued and subscribed, and what they shall contain, and we cannot but believe that the legislature intended they should be exclusive in their operation. The provisions of chapter 136 were undoubtedly designed to be applied to those writs and processes which, as a matter of law, must be issued from the courts, and which would otherwise be unprovided for, and not to such as the parties or their attorneys are, without the aid of the courts or their officers, expressly authorized to issue. This seems so obviously to have been the intention of the legislature, that further comment is deemed unnecessary.” Upon the merits of the present controversy, were we permitted to decide upon the facts as they appear to us from the record, we are free to acknowledge that we should come to very different conclusions from those arrived at by the jury. The record discloses many gross and palpable circumstances of fraud, and it is probable that few verdicts are found upon testimony of a more doubtful character. Still, if the witness Mack is to be believed, (and of his credibility the jury, not we, are the judges), it cannot be said that the verdict is entirely unsupported by evidence. The jury have found that he was worthy of credit, and that he testified truthfully. His testimony tends directly, and we may say fully, to sustain the verdict. We cannot therefore set it aside, or reverse the judgment for want of evidence. We cannot interfere with what was so clearly and peculiarly within the province of the jury. We cannot reverse the judgment be178 canse, in our minds, tbe testimony preponderates against tbeir finding. We can only examine tbe evidence so far as to ascertain whether there are any facts proved upon which the verdict may reasonably stand, and if there are, it cannot be set aside and a new trial granted, except for errors at law, and of these we are compelled to say that we can discover none which in our judgment will warrant our so doing. Among the numerous exceptions taken, there are none of sufficient weight or substance to authorize a disturbance of the judgment. The argument of the counsel for the plaintiff in error is mostly confined to the facts, and could we follow him into a discussion of them, it is very probable, as we ■have already said, that we should not differ very widely. But we cannot do this; and aside from this there seems little to .talk about. We shall notice but two or three exceptions which seem to have been most strongly relied upon. One is that the deposition and evidence of the witness, Mack, was not excluded because it was alleged in the answer that he was the Isaac Hamburger in whose name the action was brought. A sufficient answer to this objection would per■haps be, that if it were admitted that he was the real party .plaintiff, he would still be competent. Proof of this fact, at most, would have only been a circumstance tending to throw doubt and discredit upon his standing and character as a witness. It was for this purpose, no doubt, that the averment yras made in the answer, and the testimony offered at the trial, and if established to the satisfaction of the jury, it must certainly have been a very strong circumstance against him. But conceding that if proved he would thereby have been rendered incompetent, yet it was a fact to be established to the satisfaction of the court at least, and until that was done, the court could not, upon the mere claim of the answer, exclude his testimony. The substance of the objection appears to be that .the court did not do so, which, if it had been done, would have been clearly erroneous. The motion for a nonsuit was properly denied, for reasons already stated. There was evidence, tending to support the action of the plaintiff, which ought to have been submitted to the jury. [179] The objection to the question put to the witness Mack, as to what the defendant Reese said when he levied-upon the goods, was properly overruled. He was. a party to the suit, and his statements were clearly admissible against himself. There was nothing in the form of the question which was calculated to elicit evidence of a declaration made by him which might operate against his co-defendants, and at the same time not affect himself. If there had been, it might, on that ground, have been objectionable. After the answer was in, and it was seen that such was its tendency, the defendants should have asked an instruction to the jury that it could not be so considered by them. But this was not done. They contented themselves with objecting to a question which it was impossible for the court at the time to pronounce improper. The objection to the first question put to the witness Bra-ley, was improperly sustained. It is very clear that parol evidence of the fact that a suit between the parties named had been instituted before the witness as police justice, was admissible, for until it had thus been shown to the court that there was such a suit, it was impossible for the court to say that there was a record, and direct its production. But no injury resulted from this ruling, as the whole matter of the evidence given on the trial of that action was afterwards freely investigated. The defect was therefore cured, and the judgment cannot be reversed on account of it. Judgment affirmed.