Willoughby v. Smith

EisK, J. The record in this case is somewhat anomalous, as it brings before us for review the proceedings in four separate and distinct lawsuits, the appellant having appealed from four separate judgments, and from four separate orders denying motions for a new trial. Briefly stated the facts are as follows: In May, 1908, the appellant in these appeals commenced an action against one Ellis Willoughby to recover the possession of certain horses, cattle, and farm machinery, for the purpose of foreclosing certain alleged mortgages thereon, executed and delivered by said Willoughby to appellant. Thereafter each of the four plaintiffs and respondents on these appeals, claiming to own certain portions of said personal property, commenced an action against the appellant herein to recover the possession of the specific portions thereof claimed to be owned by each of such plaintiffs., Issues were joined in each of such actions, and — 214 — when called for trial in the district court the trial judge made the following order: “It appearing to the court, from the statements of counsel and from the pleadings in the case, that the issues involved in the four cases of Eliza Willoughby v. E. Delafield Smith, Wilson Willoughby v. E. Delafield Smith, Dan Willoughby v. E. Delafield Smith, and Dan and Wilson Willoughby v. E. Delafield Smith are the same, it is hereby ordered that the said four causes be consolidated, and that the issues of fact in the same be tried and submitted to the same jury.” None of the parties made any objection to such order, and the four actions were thereafter tried and submitted together, resulting in four verdicts and four judgments against this appellant and in favor of each of such plaintiffs. Motion for a new trial was submitted and overruled in each case, and appeals have been taken from each of such judgments and orders. But one statement of the case was settled, which statement is certified to as containing all of the evidence introduced and proceedings had upon the trial of said actions. Appellant has filed in this court but one abstract, which embraces the pleadings in all four actions, such statement of the case, and proceedings had subsequent to the verdicts. We are first confronted with a question of practice. Respondents’ counsel moves in this court to dismiss the appeals for the reason that a separate statement of the case was not settled in each action, and for the further reason that no abstracts and briefs have been filed on each separate appeal, their point being that no consolidation of the four actions has been ordered, or can be legally ordered, for the purposes of the appeals. It is entirely clear that the attempted consolidation of the four actions was a gross irregularity, and the order of the district court in attempting to consolidate said actions, as well as the attempted consolidation thereof in this court for the purposes of the appeals, constitutes a gross irregularity, as is apparent from a reading of § 7345, Rev. Codes 1905: “When two or more actions are pending at one time between the same parties and in the same court upon causes of action which might have teen joined, the court may order the actions to be consolidated.” These four actions were not “between the same parties,” nor could the causes of action have been properly joined. It is true this appellant was defendant in each of such actions, but the plaintiffs were different, — 215 — and tbe subject-matter of tbe suits related to different property. However, as no objection was interposed to sucb attempted consolidation, tbe parties, by tbeir silence, are deemed to bave consented thereto, and, having thus consented to tbe trial of all four actions together, they will not be beard to complain of tbe procedure pursued thereafter in settling one statement of tbe case for all tbe actions and prosecuting tbe appeals together, especially where, as in this case, no possible prejudice is claimed or can result to tbe respondents. Considerable of tbe testimony is relevant and material to each of tbe causes of action, and to require tbe appellant to settle a separate statement of tbe case in each of sucb actions, and to file separate abstracts and briefs in each of tbe four cases, would entail a large expense without any corresponding benefits to tbe several respondents. While tbe regular practice, if pursued, would bave lightened the burdens of this court to some extent, we are unable to see bow respondents are prejudiced in tbe least by tbe mode pursued, nor do we think they are in any position to complain. Tbe motions to dismiss are therefore denied. Appellant has assigned no less than fifty-seven alleged errors which be contends were prejudicial to bis rights. Most of these assignments relate to rulings on tbe admission and exclusion of testimony. Seven of them relate to tbe court’s refusal to give certain requested instructions, and tbe last one relates to certain portions of tbe instructions given by tbe court to tbe jury. We will notice these assignments in tbe order presented in appellant’s brief. Before discussing tbe assignments, appellant’s counsel call our attention to tbe fact that Ellis Willoughby, whom appellant contends was tbe owner of all this personal property, and who mortgaged tbe same to him, is tbe father of tbe two plaintiffs, Wilson and Daniel Willoughby, and tbe husband of tbe plaintiff, Eliza Willoughby, and that Wilson and Daniel at tbe time of tbe trial bad not reached tbe age of majority. At tbe trial tbe father and bis said sons claimed that tbe latter had worked for the former for wages, commencing when they were but nine years of age, and counsel for appellant emphasizes tbe fact that while tbe boys lived with tbeir parents as one family, no separate accounts were kept, and there was nothing to show to tbe outside world that these boys were claiming to be tbe owners of any of this property until after tbe father became involved, and until after appellant sought — 216 — to enforce payment of obligations claimed to be owing by Ellis Wil-loughby to him. The foregoing facts, while very material for consideration by the jury in deciding the issues of fact, tending more or less to cast suspicion upon the claims of respondents as to their ownership of the property, are of no particular importance in this court in passing upon the various legal questions involved. There being a . substantial conflict in the evidence, the findings of the jury will not be disturbed unless the record discloses that there was prejudicial error committed by the trial court. Under the first assignment of error, appellant specifies four- rulings claimed to be prejudicial. - Wilson Willoughby was a witness for his mother in her case, and testified to the fact of her ownership of two mares and certain colts, describing them. Among other things, he testified, without objection, that he understood they were bought from Bakken, whereupon he was asked, “Do you know in whose name?” (-meaning in whose name they were purchased.) ITis answer was, “I understood they were my mother’s; they were always called so.” Appellant’s counsel then moved to exclude such answer as not responsive and being a mere opinion, which motion was overruled, and this is the first ruling complained of in assignment of error number 1. While such ruling was technically incorrect, we do not consider it prejudicial when considered in the light of the prior testimony of such witness, to which no objection was offered. This witness, in his case against appellant, testified to his ownership of certain portions of the personalty, and1 on cross-examination stated that he supposed all this property was assessed in his father’s name; that “the first personal property tax I had assessed in my name was in 1908. I know it was. To the best of my recollection it is true. I believe my father paid the taxes.” And on redirect examination he was asked if the assessor ever came and asked him for a list of his property prior to 1907, to which the following objection was made’: “Objected to as immaterial and irrelevant; the law requires that the owners of property must list their property for taxes.” Such objection was overruled, and the witness answered in the negative. We discover no error in such ruling. While the testimony thus elicited was not very — 217 — material one way or tbe other, we do not see bow it could have prejudiced appellant. Such witness bad testified, just previously, to tbe fact tbat be repaid bis father for any such taxes paid for him. Nor do we discover any error in permitting such witness to testify tbat be did certain chores in lieu of paying board to bis parents. Such testimony was prompted by certain testimony brought out on tbe cross-examination of such witness. We see no merit in tbe appellant’s objection. Nor do we perceive any merit to appellant’s contention tbat this witness was improperly permitted to testify as to an existing agreement between himself and bis father, relative to wages. He testified tbat bis father said be would give him $25 per month. Tbe question to which this was an answer did not call for a conclusion, but for tbe fact as to whether any agreement was entered into with reference to wages. Tbe other specifications of error under assignment number 1 are frivolous and wholly without merit. This is also true as to the 2d assignment. Tbe father, as a witness for bis son, Wilson, was asked, “Do you know to whom tbat property belonged tbat be described here ?” to which be answered, “Yes, sir, I know,” and thereafter be was asked to state to whom it belonged, and he answered, “It belonged to Wilson Willoughby, my son.” Tbe objection to this testimony was clearly untenable. Tbe rulings complained of under assignments numbered 3 and 4 are similar to those preceding, and we need not notice them further than to state tbat we perceive no error in such rulings. Assignment number 5 is predicated upon a ruling denying defendant’s motion to exclude an answer made by Ellis Willoughby to tbe following question propounded to him on redirect examination: “Q. Counsel on cross-examination asked you about tbe amount tbat you were worth, and if you were not at tbat time execution proof, and you stated tbat you would be able to pay your debts if you could get your own. Now, by tbat what did you mean? A. I mean if I can get pay for tbe property tbat Smith stole from me.” Before tbe ruling was made tbe witness stated, “I didn’t owe him a dollar; I paid him up every cent I owed him in February,” whereupon tbe court denied tbe motion. Tbe prejudice resulting from such answer and ruling is more imaginary than real. Tbe jury could not have been impressed thereby with tbe — 218 — literal truth of such statement, as there was no claim that Smith had actually committed a larceny of such witness’s property. The idea that the witness evidently intended to convey by such answer was that Smith had gotten some of the witness’s property to which he was not legally entitled, and this no doubt is the way the jury construed it. Conceding that the trial court should have granted such motion, we do not think the denial thereof was of such a prejudicial character as to constitute reversible error. Assignments numbered 6, Y, and 8 are- not argued in the brief, and are therefore deemed abandoned, and need not be noticed. The appellant, Smith, on his direct examination, testified, among other things, “that neither Dan nor Wilson Willoughby ever pointed out or claimed any of these animals they are now claiming in this suit belonging to them,” and in rebuttal respondent, Dan Willoughby, was asked the question: “Q. I will ask you if during the spring of 1908, when he was attempting to seize some horses belonging to your father, you pointed out to him the horses which belonged to you ?” This was objected to as incompetent, immaterial, irrelevant, and an attempt to introduce evidence that is self-serving. Such objection was overruled, and the witness answered, “Yes, sir.” This ruling is complained of under assignment number 9. We perceive no merit in appellant’s contention. Such testimony was clearly proper as rebuttal. Frivolous objections, such as this, do not deserve serious consideration. The rulings complained of under assignment number 10, when considered in the light of all the testimony of the witness Ellis Willoughby in his rebuttal testimony, are, we think, not subject to the-criticism made by appellant’s counsel. Under the 12th assignment it is contended that the court erred in receiving in evidence exhibit “A-7.” This exhibit consists of a memorandum containing certain words and figures which the witness Ellis Willoughby identified in his rebuttal testimony as a settlement sheet or memorandum claimed to have been made by such witness in the presence of defendant, Smith, the correctness of which figures Smith admitted, except a certain portion relating to two loads of grain. The witness testified regarding such exhibit as follows: “Exhibit A-Y is the paper on which the difference of this grain was figured; those marks were made in his presence, I showed them to him, he saw them. He agreed — 219 — that all was correct except he didn’t like to estimate those two loads of grain; preferred to have it right. He knew he had it somewhere on paper.” We perceive no error in the ruling complained of. Certainly a sufficient foundation had been laid for its introduction. Under assignment number 13 appellant complains of the court’s ruling in sustaining plaintiff’s objection to the following question propounded to Ellis Willoughby on cross-examination after such witness had testified in rebuttal: “Q. How did you pay Smith for the note of $2,000 that you gave him on August 1, 1906 ?” Objected to as improper cross-examination, not having been gone into in the rebuttal testimony. We have read the testimony given by this witness on his direct examination in rebuttal, and find that no inquiry concerning such $2,000 note was made. The ruling 'was therefore correct. The rulings complained of under assignment of error number 14 were likewise correct. Appellant’s counsel sought to cross-examine the witness upon subjects which had not been touched upon in the direct examination of such witness in rebuttal, and the objections which were sustained were that it was not proper cross-examination. Under assignment number 15 appellant complains because the lower court sustained objections to certain questions propounded by defendant to the witness Watkins, an alleged expert in handwriting. Defendant sought to show by this witness that exhibit “Q,” a mortgage executed by one Armstrong and Ellis Willoughby to defendant, was not written with a fountain pen, but that the same was written by a steel pen. These questions were objected to, and the objections sustained upon the ground “that the same were incompetent, irrelevant, and immaterial, no foundation having been laid for the testimony, and improper rebuttal testimony.” We think the rulings were proper. Ellis Willoughby had not claimed that such exhibit was written with a fountain pen; on the contrary, he testified: “I don’t know who got it, Mr. Smith handed it to me. I don’t remember what kind of a pen and holder it was; have no recollection.” We discover no merit whatever in this assignment. Under assignment number 16 appellant specifies 8 distinct separate rulings as error. He refers to but three of these in the body of his brief, but does not support even these three by any reasons whatever, and we shall treat all of such specifications as abandoned. — 220 — We have examined the numerous rulings complained of under the 17 th assignment of error, and discover no substantial merit in appellant’s contentions with reference thereto. Under such assignment there are about a dozen rulings therein specified as erroneous. It will serve no useful purpose to take the time necessary to a review of each of such rulings. They are discussed in the briefs only in a perfunctory manner. If any of such rulings constituted error we fail to see how the same was so prejudicial as to require a reversal. Assignments numbered 18, 19, and 20 cannot be considered, as they are not proper assignments. By assignment number 18 counsel undertakes to assign as error the alleged insufficiency of the evidence to sustain the verdict, and by assignment number 19 he alleges that the entire record shows that the defendant did not get a fair trial, and he proceeds to point out wherein he was precluded by the trial court from giving the facts to the jury. By assignment number 20 he alleges that the verdict is contrary to law, contrary to the evidence, and the result of passion and prejudice on the part of the jury. Obviously, such assignments are improper. An assignment of error must be directed to some specific ruling of the trial court claimed to constitute error, and must challenge the correctness of such ruling. Assignments numbered 21 to 27 inclusive are predicated upon the refusal of the trial court to give certain requested instructions relative to the presumption of fraud arising from sales of personal property not accompanied by an actual and continual change of possession, and also relating to the burden of proof of overcoming such presumption. We have carefully examined these requested instructions, and while some of them might properly have been given, still, after reading the entire instructions of the court to the jury we are agreed that no prejudicial error was committed in declining to give such requested instructions, as the charge given was very full and fair, and substantially and correctly covered the matters thus requested, as well as the law of the case generally. The portion of the instructions given by the trial court, and which we think substantially covers the matters embraced in the requested instructions, is as follows: “Our statutes provide that every sale made by a vendor of personal property in his possession or under his control, and every assignment — 221 — of personal property, unless the same is accompanied by an immediate delivery and followed by an actual and continued change of possession of the property sold or assigned, shall be presumed to be fraudulent and void as against the creditors of the vendor or assignor, or subsequent purchasers or encumbrancers in good faith and for value, unless those claiming under such sale or assignment make it appear that the same was made in good faith and without any intention to hinder, delay, or defraud such creditors, purchasers, or encumbrancers. “This provision of the law places the burden upon the plaintiffs, under such circumstances, of proving that they were purchasers from their father of certain of this property in good faith and for value; and if you find by a preponderance of the evidence in this case that the property purchased by the plaintiffs Dan and Wilson Willoughby, from their father, Ellis Willoughby, was purchased in good faith and for value, without any intent to hinder, delay, or defraud creditors, purchasers, or encumbrancers, then you ai*e instructed that the fact that the property so purchased was not separated from the property of their father, Ellis Willoughby, is immaterial. “The circumstances surrounding the purchase of said property, the relationship of the parties, the manner of transacting the business, the manner and mode of paying for the property, the opportunity and ability of the plaintiffs in view of their circumstances and condition, their individual activity in business and farming operations, are circumstances for you to take into consideration in arriving at your determination as to the bona fides and good faith of the various transactions as shown by the evidence.” What we have above stated sufficiently answers appellant’s contention under his last assignment, which is predicated upon certain exceptions to portions of the instructions given by the trial court. We discover no prejudicial error in the instructions complained of. In affirming these judgments, we, of course, are not called upon to express an opinion upon the merits of the cases. The fact that we may not agree with the findings of the jury upon the various issues involved is wholly immaterial. A jury of twelve men have passed upon the facts adversely to the appellant, and it is not the province of the court to disturb such findings, although seemingly erroneous, where, as in these — 222 — cases, such findings or verdicts have substantial support in tbe testimony, and where, as in these cases, we are unable to say that the trial court committed prejudicial error. In conclusion we cannot refrain from criticizing the manner in which these cases have been presented to this court. The assignments of error are an exact duplicate of the specifications of error, and most of the so-called assignments are subdivided into numerous alleged assignments or specifications, and while there are nominally twenty-eight assignments of error there are, in fact, some fifty-seven in number. Such a method of presenting assignments of error is not to be commended, as it necessitates on the part of the court much needless labor, — especially where in the body of the brief, as in this case, many of such assignments are promiscuously thrown together without any logical arrangement, and many of them treated only in a perfunctory way. The judgments and orders appealed from are affirmed. jBubke, J., being disqualified, did not participate.