Roehl v. Baasen

By the Court Atwatee, J. This was an action to cancel and set aside a note and mortgage given by Plaintiffs to one Pross, and by him assigned to Defendant, Baasen. The ground upon which the relief is claimed, is, that the mortgage was fraudulently obtained by Pross, and that Defendant took the assignment with notice of the fraud. There was a jury trial, and verdict for the Defendant. The Plaintiffs moved for a new trial, which was denied, and Plaintiffs appeal. The Plaintiff, who was sworn as a witness on the trial, stated, that “ Pross told me something when the quit claim deed was executed, in complaint set forth.” The Defendant then objected to any testimony about the quit claim deed, or what was said by Pross when it was executed, and the Court excluded the testimony. There was no exception to this ruling. The Appellant now alleges this as ground of error. See. 59, of ¶. 564 Comp. Stat. provides in what cases, and upon what grounds a new trial may be granted, and among others, sub. 1 allows a new trial for “ error in law, occurring at the trial, and excepted to by the party making the application.” The statute has thus declared that in order to enable a party to take advantage of an error of law occurring at the trial, the party complaining of such error must have taken an exception thereto. Whatever view, therefore, the Court might take of the policy of such a requirement, it must be governed by it. But the rule itself is so just and necessary, and the reasons for it so numerous and obvious, that any ar [31] gument in vindication of it would be entirely superfluous and out of place. "Where a party offers evidence, which is excluded by the Court, and no exception is taken, it will be understood that the party acquiesces in the decision and waives the evidence. The Appellant, however, claims that the rule applies to a bill of exceptions only, and not to a case. What the papers presented to this Court, (and purporting to contain the pleadings and proceedings on the trial) may properly be called, it would be difficult to say, as there is no certified record of any of the papers or proceedings, nor any stipulation that those presented should be received as a case, or otherwise. But if this is to be considered as a case, the objection clearly is not well taken. Eor sec. 60 of the same chapter provides that “ when the application is made for a cause mentioned in the fourth, fifth and seventh subdivisions of the last section, it is made either upon the Judge’s minutes, or a statement of the case prepared as prescribed in the next section.” This shows conclusively that if the Defendant claims error under the 7th subdivision, he must move upon the Judge’s minutes or a case prepared, and no reference is made, in any manner, to a bill of exceptions. It is also urged by Appellants, that if an exception had been taken to the exclusion of the testimony, it would not have obviated the Defendant’s objection to its introduction, as the testimony offered was the only testimony that could be offered. What the ground of the Defendant’s objection to the testimony was, does not appear,, nor what was proposed to be proved by the witness. . This Court, therefore, cannot determine whether the Defendant’s objection could have been obviated or not by other testimony. The Appellant has referred to some authorities to show, that upon a case, advantage might be taken-of an erroneous ruling or charge, without excepting to the same, though not upon bill of exceptions,- and also that where the evidence offered is of such a nature that none other could be produced, no exception is necessary. We think both these cases are covered by our statute, and that if the rule contended for has obtained in other States, it cannot be [32] regarded as aatboritj under the code. At all events, if tbe Appellant can bere urge as error the exclusion of evidence to which he has taken no exception below, on the ground that if an exception had been taken, it would not have obviated the objection, from the fact that no other proof could, be offered, the case must clearly show the existence of that fact, and not leave it for inference only, as in the case at bar. The witness was asked the question, “ Did you know the instrument was a mortgage when you signed it ?” This was objected to by Defendant, and the question excluded, to which Plaintiff excepted. The answer to this question called for a’ conclusion of the mind of witness, and in-no otherwise was it or could it be the proof of any fact. If the question was proper, it would have been pertinent in rebuttal for the Defendant to have proposed the same question to some other witness. In a conflict be. tween witnesses on such point, it is difficult to see how the jury could' decide upon such evidence, unless it were upon the ground of giving more weight to the Plaintiff’s evidence from the fact that he must better know the conclusions of his own mind than could any other person, and thus put it in the power of a party to offer a species of evidence which by no possibility could be contradicted, and upon which perjury could not be assigned. The Appellant, however, claims that perjury could be assigned upon the answer, since, if the witness had said he did not know it to be a' mortgage, it must have been equivalent to saying that it was not a mortgage. If this be correct, the answer to the question could be of no benefit to the Plaintiff, since the instrument must show for itself what its legal character is. Nor, indeed, would the fact alone that the Plaintiff did not know that the instrument was a mortgage, constitute any defence, if the circumstances were such that he might have known, or may reasonably be presumed to have known the fact. And this suggests the nature of the proof competent and proper upon the issue, to wit, the facts and circumstances surrounding the transaction, from which the jury may find what knowledge, or means of knowledge, the Plaintiff had upon the subject. The Plaintiff submitted to the Court three several prop.osi33 tious in writing/which' were not submitted to the counsel for the Defendant, which the Court was requested to give as a charge to the jury. The Court declined to charge as requested. The Appellant now claims, in regard to the third proposition, that the refusal to charge as requested was error, for which a new trial ought to be granted. ■ We think there was no error in the refusal to charge as requested ; and if there had been, the Appellant has not placed himself in a position to take advantage of it. In the first place, the charge requested should have been submitted to the opposite counsel, as it might have been assented to, and the charge given. And, secondly, the Plaintiff has taken no exception to the refusal to charge as requested. The same rule prevails here, as in regard to tLe improper admission or rejection of testimony. For the.same reason as last above stated, the Appellant cannot urge objections to the charge, or portions of the same, as actually given. No exception was taken at the time, and the Plaintiff must he held to have waived all objections to the same. Where a Court is required to charge upon perhaps a number of propositions, without time for examination, it is scarcely to be expected but that sometimes expressions should be used which would not bear the rigid scrutiny of law. Put it would lead to the most pernicious results, to permit a party claiming to be prejudiced, to sit quietly by without raising any objection,- and afterwards, at his leisure, study out objectionable portions of the charge, and claim a new trial upon such ground. In this case, however, we observe no errors, or none of serious moment, in the charge given to the jury, and think it as favorable, on the whole, for the Plaintiff, as he could have had reason to expect. Nor can the verdict be disturbed on the ground that the evidence is insufficient to sustain it. Not only is the verdict not contrary to evidence, but in the judgment of this Court, the evidence largely preponderates in favor of the Defendants. Certainly under the rules applicable to this point, no Court would be justified in setting aside the verdict on this ground. We cannot dismiss the case without remarking, that by the showing of the Plaintiff himself, his claim has but little equity [34] entitled to consideration. He admits the receipt of the money from Pross, which the mortgage was given to secure. But he claims Pross agreed to pay him $1,000 for his interest in 160 acres of land near St. Peter, and the improvements. His claim is, that he was to go on to the land,-make improvements, and prove up and deed the land to Pross. By his own statement he was on the land fourteen and a half days, and then, abandoned it and never proved up. That Pross furnished the money to make what improvements were made.. His whole claim, then, for the one thousand dollars rests upon this fourteen and a half days’ labor, rendered upon an agreement clearly illegal and against public policy, an agreement which could never have been enforced in any Court of law or equity. If Pross ever did in fact agree to pay the 'Plaintiff $1,000 for this service, (which he positively denies,) and has succeeded in getting it back, or security for it, these facts do not present a very strong ground for the interference of a court of equity. The order refusing a new trial is affirmed.