Pullian v. Nelson

Catón, C. J. The witness was asked whether the defendant resided at Monmouth. This was objected to and allowed by the court, and an exception taken. The- answer was not a direct categorical answer in the affirmative or negative, but the witness went on in reply and gave a minute statement of the facts, from which the jury could determine, under the instructions of the court, whether the defendant was a resident or not. There is no objection urged to the form of the question on account of its being leading, but the objection is to its substance. A majority of the court do not think this j udgment should be reversed because this question was allowed to be answered. It may be said of a great majority of the members of every community that their places of residence are so unequivocal and notorious as to admit of no doubt or dispute. All who know them can declare at once where they reside, and the simple question in the form admitted in this case, is all that is necessary for the full elucidation of the truth. Where there is real doubt as to the actual residence of the party, all the facts of the case can be laid before the jury upon the cross-examination, even though the witness express his opinion directly in answer to the question,- without, in his response, giving voluntarily those facts; and from the facts thus elucidated, the actual residence may be determined. Were it ordinarily a question of doubt and uncertainty where men composing a community resided, the form of the question here used would be more exceptionable, but a doubtful residence is an exceptional case, and in such cases the means are always at hand for elucidating all the facts and circumstances by which the question must be finally settled. But in this case, even if the form of the question was objectionable, the answer which was elicited shows that the objectionable form had no improper influence in framing the answer. If the answer is a proper one, then the party cannot complain of 'the form of the question, because it has not injured him. It is the answer at last which must determine whether a party has been injured by an improper question. If the answer may have been influenced or induced by an improper question, then the party may complain ; but where it appears affirmatively that it was not, he has no reasonable ground for complaint. Suppose the most objectionable question imaginable put to a witness, and he answers that he does not know.- It would be absurd for the party to complain because the court had erred in allowing an improper question to be put. That it is the answer and not the question which must constitute the ground of complaint in this court, was settled in Hays v. Smith, 2 Scam. 427. The testimony must be illegal to justify a reversal. We do not see any objection to the modification by the court of the fourth instruction. It is the same instruction, in substance, as the original, with this exception. The court requires the jury, before they can find for the plaintiff, to find that the defendant was not a resident at the time of issuing the attachment. This was very proper, because, if he had been non-resident up to that time, but not at that time, the plaintiff must fail. The appellee makes the objection, that the affidavit is defective, because the non-residence is alleged as existing at the time the affidavit was filed, and it does not appear that he was non-resident at the time the suit was commenced. We apprehend, the non-residence is properly alleged, as of the time the affidavit is made, and that is, really, the commencement of the suit. It is on the affidavit the writ of attachment issues. The issue tendered by the affidavit was not, therefore, an immaterial issue. There is no question of concealment to avoid process in the ease, as the appellee seems to suppose. The affidavit went upon the ground of non-residence, and nothing more. _ The judgment of the Circuit Court must be affirmed. Judgment affirmed.