Porter v. Sigler

Opinion by Greene, J. This was an action in the district court against the indorser of a promissory note. The record in a previous suit against the maker of the note was introduced, to show that a continuance had been granted by consent of parties, in order to affect the question of diligence. The court in this case admitted parole proof to explain why the continuance was had “ by consent,” as stated in the record, by showing that the cause could not have been reached for trial at that term of the court. This admission of parole proof was objected to, and is assigned as error; upon the assumption that it would be contradicting and varying the record. If the evidence offered could have such a bearing, the proceeding could not be otherwise regarded than erroneous. But we cannot see how this rule.of evidence can apply to the case before us, as the testimony steers clear of the principle. It is, in no particular, incompatible with the record (14 John. R.. 211) ; it neither adds to nor changes its legitimate construction. It is corroborative of the fact that the continuance was granted by consent of parties; and only collaterally explains the inducement and circumstances of the mutual arrangement. The evidence was not to contradict, but to explain the record. The question as to the sufficiency of the testimony to show due diligence in pursuing the maker, though adverted to by counsel, does not arise; but it may not be improper to observe, we are clearly of the opinion that parole evidence could properly be introduced in such a case to establish that fact. The following authorities show the propriety of admitting explanatory parole evidence under more questionable circumstances than are presented by this case. Barmore v. Jay, 2 McCord, 371; Olmstead v. Hoyt, 4 Day, 436 ; Cave v. Burns, 6 Ala. 780; Turney v. Goodman, 1 Scam. 184; Herrick v. Bean, 2 [263] App. 51; Chamberlain v. Dover, 1 Shep. 466; Trafton v. Rogers, ib. 315; Justice v. Justice, 3 Iredell, 58 ; Williams v. Ingell, 21 Pick. 288 ; The State v. Matthews, 9 Port. 370; Carmony v. Hoober, 5 Barr, 305 ; Dice v. Yarnel, Morris, 241. Judgment affirmed.