Eppert v. Hall

McBride, J. This was a suit hy the appellee on a note alleged to have been executed to her by the appellants, Eppert, Duey, Keys, and one William B. Tuell. Pending the litigation Tuell died, and the appellants, Tuell and Marshall, as administrators of his estate, were substituted as defendants in his stead. The defenses were non est factum and want of consideration. The appellee having recovered a verdict, a joint motion for a new trial hy all of the appellants, and a separate motion hy the administrators, were both overruled. Both rulings are assigned as error. The first reason • assigned for a new trial hy the parties jointly is that the verdict is not sustained hy sufficient evidence, and is contrary to law. As discussed, it involves [419] simply the question of the sufficiency of the evidence to sustain the verdict. The appellee testified as a witness in her own behalf. Her testimony was material, and probably of controlling force in support of the verdict. Counsel for the appellant insist that she was so thoroughly impeached by proof of irreconcilable inconsistencies and downright contradictions between her testimony in the caso at bar and in another ease involving substantially the same subject-matter that her testimony here should be wholly disregarded. Her credibility and the weight to be given her testimony were( questions for the trial court and jury. We would not lie justified in disturbing the verdict upon that ground. The appellants insist that the court erred in its third instruction to the jury. That instruction was, in substance, a mere statement to the jury of the familiar and elementary proposition that a valid consideration as between the principal debtor on the note and his creditor was sufficient to support the undertaking of the sureties. The note was executed to secure a loan of $600, which was to be used in paying off another note on which the same sureties were liable. The appellants also insisted that it was not to be delivered until one Button had signed it as an additional surety, and then only on the cancellation of the other note, neither of which, conditions were complied with. The appellants contend that the instruction was not applicable to the issue, and was, under the circumstances, misleading. • As above stated, one of the defenses pleaded was want of consideration. As applied to the issue thus formed, the instruction in question was certainly proper. Elsewhere the phase of the controversy presented by the facts above stated was fairly and correctly stated. If the instructions were not as full as the appellant desired, he should have asked for additional instructions on that point. The appellants have no reason to complain of this instruction. [420] The appellants, as one of the reasons for a new trial, alleged. that the court erred in refusing to give certain instructions asked by them. In their brief they again assert that this was error, but they have not favored us with any argument in support of their assertion. If there was error in this action of the court it is waived. A mere reiteration in the brief of a charge of error found in a motion for a new trial is, in no sense, a compliance with the rules of ^practice in this court. Rule 26. The deposition of a certain witness who had died before the trial was offered and read in evidence. The appellants sought to impeach him by giving in evidence another deposition of the same witness taken and used in another case between the appellee and certain other parties. The court excluded the latter deposition. This was not erroneous. No foundation had been laid for the impeachment. The death of the witness after the taking of the latter deposition did not change the rule requiring, as preliminary to his impeachment in this manner, that his attention be first called to the alleged contradictory statement, and the time and place it was alleged to have been made. This could have been done when the second deposition was taken. The parties having neglected — at that time — to lay the proper foundation, can not now complain because' death has made it impossible to lay such foundation. The appellee testified as a witness in her own behalf. The appellants, Tuell and Marshall, objected on the ground that she was not a competent witness against the estate represented by them. The court overruled the objection, saying that he would settle the question by an instruction to the jury. She was allowed to, and did, testify generally against all of the appellants. At the proper time, the administrators requested the court to instruct the jury to disregard her testimony as against the estate, but the court did not do so. This was error. She was not a competent witness against the [421] estate, and the court should have instructed the jury that they should not consider her testimony as against it. The administrators separately assigned this as a reason for a new trial, and here urge it as error. This error, however, can not avail the other appellants. "We find no other error in the record. Filed April 28, 1892. The judgment is affirmed as to .all of the appellants, except Tuell and Marshall as administrators. As to them it is reversed, with instructions to the Olay Circuit Court to sustain their separate motion for a new trial.