Mays v. Deaver

Woodward, J. This cause now comes up upon the motions of the appellee. His first motion is to strike from the record, bills of exceptions numbers one and two. 1. Because they are not signed by William H. Seevers, judge of the third judicial district of the state of Iowa. 2. Because they do not show, nor does the record show, that they were taken and signed during the trial of the cause, and before verdict rendered, or that time was allowed by the court to settle the same. Counsel refers to the Code, §§ 1805 and 1806; Jones v. Sprague, 2 Scam. 55; Hicks v. Pierson, 19 Ohio, 426. The facts upon which the first ground of the motion is based, are, that the first bill is signed “ Seevers, Judge,” and the second, “ W. H. Seevers, Judge.” If all papers were rejected from the files of the court, which do not show upon their faces respectively, to what state, district, county or court, or to what cause, or judge’s jurisdiction, they belong, but few would remain. It is true, that it would be a much more professional and workmanlike paper, and far more satisfactory to the mind, if each one should show in its title to what cause, and where it belongs. But few papers in our courts, would, in fact, bear this test, and this is not the ground upon which they are usually received. Many papers in causes, have not the name of the cause; some are not entitled of the court below, or the court above; most of them probably have not the name of the state, or of the county; and several of these points would apply to the papers on both sides, in this case. Why, then, are such papers, received? Those papers which the law recognizes as con — 220 — stituting tlie record files, or which are properly eriibodied as a part of the record, in one transcript, or united together and certified by the official certificate of a clerk of a known court, under his seal of office, are thus authenticated, at least, until something is shown against them. This authentication secures the presumption, at least, that the given paper belongs to the state, the district, the county, and court, whose clerk certifies it,'and the cause in which he has certified it. We judicially know the districts and who are the judges of them, and the signature itself, and the transcript of it, is presumptive evidence of the genuineness of the original, as being that of the said judge, and of none other. The paper is certified Under the judicially known seal of a court and county, in a district, and under a judge, all judicially known to the extent of all needful presumption, at least. There must be his name and office, it is true, but why his initials, more than his full Christian name or names, and what, need of affixing his district. There is no more danger of mistake or forgery under this, than under a theory requiring everything full and express. Scarcely a case could stand in a court, without this reasoning. Neither the signatures to the record of this court, nor those of the District Court, oftentimes, have this fullness of explanation. The bill of exceptions coming up with a cause, seldom contains all that is required by these motions. It is true, that, if this practice is erroneous, it should be rectified ; but we cannot consider it erroneous in the legal sense, although it would be better practice, if the papers should show more fully what they are. As to the second ground for this motion, the last clause of section 1805 of the Code, seems to answer it, by providing that “ where a bill of exceptions is subsequently filed, such consent shall be presumed, unless the contrary be shown by the record.” But this bill does not appear to have been filed subsequently to the trial; and in the case of Claggett v. Gray, ante, 19, this court has held, that where the bill of exceptions is silent as to when it was settled, we will presume that it was taken in term regularly, or so settled by agreement, without — 221 — any reference to the time of filing. None of these bills show in the transcript, when they were filed. The appellee’s second and third motions may be stated and considered together. They are, to strike from the record bill of exceptions number four, because it refers to a motion for a new trial, which is not copied therein; and to strike out what purports to be a motion for a new trial, because such motion is properly no part of the record, the same not having been embodied in a bill of exceptions. And counsel refers to Reed v. Hubbard, 1 G. Greene, 153 ; Cook v. Steuben Co. Bank, 2 G. Greene, 447 ; Abbee v. Higgins, 2 G. Greene, 535 ; Harriman v. The State, 2 G. Greene, 270; Huff v. Gilbert, 4 Blackf. 19; 2 Ib. 402; Troy v. Reilly, 3 Scam. 259 ; Code of Iowa, 1977. Under the former practice, to which these authorities refer, there could be no question but that this motion must prevail. But the case stands in this respect upon section 1977 of the Code, referred to by counsel. It had been held by many courts, and by some of our own, among them, that the original writ was not a part pf the record. This arose from the English view, where the practice in relation to bringing a party into court, differed so widely from the American. We proceed upon the ground of giving a party notice, and then he may appear or not, as he pleases. If he does appear, the writ and service are of no consequence. But in taking judgment by default, they are of vital importance, to show the jurisdiction of the person; as they are, also, when being sued upon the judgment of another state, the defendant denies notice and appearance. And, again, doubt and controversy arose upon the question, what is record ? and much labor and time was taken up in courts and on trials, in making that record, which might well be considered such. We presume these and similar views, entered into the consideration of the legislature, when they adopted a system intended to shorten and simplify legal proceedings; and when they provided in Section 1977, that “ all proper entries made by the clerk, and all papers pertaining to a cause and filed therein (except sub — 222 — poenas, depositions, and other papers which are used as mere evidence), are to be deemed parts 'of the record.” In this case, there is a motion for a new trial, regularly 'certified by the clerk, marked filed, and the transcript of the record proper, refers to it as filed and overruled. The bill of exceptions, number four, certifies that this motion came up for hearing and was overruled, and that defendant excepted. We think this motion was a part of the record, within the meaning.and purpose of the statute. This practice will be found, we apprehend, more convenient than the former,, but yet some care will be requisite in identifying papers, when there is a plurality of them, and in causing the record proper, to show that they were filed. We are not called upon in this case, to decide whether or not a bill of exceptions should accompany and show the exception taken to the decision on such a motion, for such a bill does accompany this, it is at least safe, that a bill should show the exception taken to the ruling on any paper, which, when filed, was not a part of the record at common law, and that the record should show such filing. The mo* tions are, therefore overruled. Weight, C. J. We find no error in the admission of the ■ testimony of the witness, Johnson,. The rule referred to by appellant in 1 Greenleaf on Ev., § 201, and other authori- ' ties there cited, is very well settled, but does not affect this question. Those authorities only assert the general principle, that where part of a declaration or conversation is received, the whole that was said at the same time relating to the same subject, may be. elicited, in order that the true meaning and import of the conversation may be ascertained. And so, in this case, the defendant would have -a right to call out that entire conversation, if in his power to do so; but because the witness did not happen to hear all of it, we know of no rule that would exclude what he did hear. That he did not hear all, would go to the effect of the testimony, and not to its admissibility. As a general rule, such evidence should be received and weighed by the jury with — 223 — Very great caution, it being weak in its character, and sub*, ject to much imperfection, and mistake. And subject to this just qualification, such testimony must go to the jury. We admit the injustice that may arise in many cases, by admitting a part of a conversation, when all was not beard, but we are aware of no rule that will prevent its admission, subject to all just exceptions to its weight and effect. To exclude such evidence would be, in effect, to prevent the admission of declarations in almost every instance. There are few cases, perhaps, in which the witness could state positively that he heard all that Tvas said; or if he did, that he could state all that he did hear. And yet the admission of such testimony is of every day occurrence. Its admissibility . is not doubted. The effect of it, however, is an entirely different question. State v. Corington, 2 Baily, 569; Cleveland v. Burton et al., 11 Vermont, 138; 3 Phillipps on Ev. Cow. & Hill's notes, 337. On the second error assigned, the appellee claims, that inasmuch as the testimony of the witness, or his answer to the question propounded, is not given or shown, this court cannot consider the correctness or incorrectness of the question itself. And to this opinion we incline, and so hold, though not without some doubt. The rule has been frequently recognized by this court, and is now well settled, that error will not be presumed — that it must .be disclosed by the record; and that it must appear that the party complaining, was prejudiced by the error of which he complains; that a state of facts will not be presumed in order to find error. See Lawson v. Campbell & Bro's, decided at the December term, 1854, of this court. That the record should show that the party was prejudiced by the error of which he complains, see Brewington v. Patton & Swan, and the authorities there cited, ante, 221; also, 1 Alabama, 519 and 582; State v. Cowen, 7 Iredell, 239. That it is not sufficient to show that an improper question was asked a witness, unless it also appear that the answer thereto disclosed improper and illegal testimony, and to the prejudice of the party objecting, see Samuel v. Withers, 9 Miss. 166; Withington v. Young, 4 Ib. — 224 — 564; Miller v. Houcke et al., 1 Scam. 501; Russel & Trip v. Martin, 2 Scam. 492; Hays v. Smith, 3 Ib. 427; Swarde v. Warden, 3 Rawle, 101; King v. Mims, 7 Dana, 268; Ferridge v. Selser, 4 How. (Miss.) 566. In. 9 Miss. 166, it is held, that even if an incompetent witness is admitted, it must appear that tbe witness gave evidence material to tbe case, or tbe judgment will not be reversed. In 1 Scammon, 501, it is ruled, that where an exception is taken to a question asked a witness on tbe trial of a cause, if tbe answer of tbe witness is not given in tbe bill of exceptions, tbe Supreme Court cannot know that the court below received improper testimony. In 2 Scam. 492, wbicb was an action for slanderous words spoken, tbe counsel for tbe plaintiff read tbe declaration to a witness, and asked Mm if be bad beard defendant speak tbe slanderous words therein charged.' This question was objected to, tbe objection was overruled, and the witness permitted to answer. What tbe answer was is not shown. Tbe Supreme Court held, that inasmuch as tbe answer of tbe witness did not appear, such ruling of tbe court could not be assigned for error. In tbe case in 7 Dana, 268, where a witness was asked an improper question, and tbe objection to it being overruled, it was answered, but tbe record did not show what tbe answer was, ox that it was prejudicial to tbe object or, it was held that tbe judgment should not be reversed. Tbe case in 1 Ohio, 141, referred to by tbe appellant, does not touch this question. Tbe court there bold, only, that where tbe bill of exceptions does not profess to contain all tbe evidence, yet if tbe court below erred in ruling to a material fact in tbe defence, tbe Supreme Court would not undertake to say that defendant was not prejudiced by such erroneous ruling. In that case, it is established, that there was error in tbe ruling of the court in a material fact in tbe defence of the case. In this case, the very thing to be established — claimed on one side and denied on tbe other — is, whether there was error. If that error must appear affirmatively, not be presumed, bow can it appear under tbe authorities above cited, unless we know what tbe testimony was, or answer to the question asked ? — 225 — let us look at tbis case as to tbis point, in view of tbe principles above indicated. , Mays claimed tbat Deaver, by false and fraudulent representations, bad injured bim in tbe sale of tbis land. Having proved tbe trade, be then proposes to prove bis damages. His object was to prove tbat tbe land wbicb be in fact obtained, was worth less than it would bave been, .if it was of tbe contract quality and description. To tbis be calls a witness, and asks bim bow much it would bave been worth, if it bad been of tbe kind and description represented by defendant. Tbis question is objected to, but tbe witness is permitted to answer. Tbat answer is not here. Suppose be bad answered, tbat be could not say ? Or suppose be bad given no higher value to tbe land as described by tbe defendant, than tbe actual value of tbe land wbicb tbe plaintiff obtained ? Or suppose be bad given it a less value, stating tbat tbe land wbicb the plaintiff, in truth, bad, was more valuable than if it bad been of tbe kind and quality represented by defendant— would defendant bave been injured by such answers ? Certainly not. And bow can we presume, in tbe absence of anything to show what tbe witness did state, tbat bis answer was such as to prejudice tbe defendant. To establish such a rule, we think, would not be safe, especially when tbe matter could bave been put beyond all controversy, by setting out what tbe testimony was, if indeed it did prejudice tbe defendant. We must, therefore, bold tbat tbis assignment of error is not well taken. In doing so, however, it is proper to say, tbat we do not wish to be understood as recognizing or denying the correctness of tbe rule or measure of damages, as claimed by plaintiff. It is not necessary to decide tbat question, and hence we intimate 90 opinion. Tbe only remaining question is, tbe overruling of tbe motion for a new trial. Tbis point is not insisted upon with much apparent confidence; but as it is presented, we notice it. Two grounds are alleged: one, tbe admission of improper testimony; and tbe other, tbe discovery of new and material evidence. Tbe first point is disposed of by tbe — 226 — rulings above made. As to tbe second, it is only necessary to say, that there is no showing of proper diligence to obtain such testimony, before or at the time of the trial of the cause. Neither is the testimony in the cause before us, and for -aught we can see, this new evidence is but cumulative. The affidavit of the defendant merely says, that he did not know of this testimony at the time of the trial. He does not show or aver diligence to obtain it, or to ascertain its existence. The affidavits of part of the witnesses, upon whom he relies, do not accompany his application, to show what they would swear if a new trial was granted; nor is any reason shown why they do not. As to one, if not more, of the witnesses, he also shows that he was subpoenaed, but failed to attend. Eor going to trial, when such witness was absent, instead of continuing the cause, in order to procure his testimony, no reason is shown. Hence, we can see no reason for holding, that the court did not exercise a proper discretion in overruling this motion. On this point, see Cummins and another, administrator v. Walden, 4 Blackford, 108; Reeves v. Royal et al., 2 G. Greene, 451; Millard v. Singer, Ib. 144; Loyd v. McClure, Ib. 139 ; Bright v. Wilson, 7 B. Mon. 122; Bullock v. Beach, 3 Vert. 72; Lester v. State, 11 Conn. 15; 1 Blackford, 367; Richardson v. St. Joseph Iron Co., 5 Ib. 146; Stickney v. Cassell, 1 Gilm. 418. Judgment affirmed.