Oberholtzer v. Hazen

Ladd, J. 1 I. The defendant bases his application for new trial on the ground of newly discovered evidence, and in support thereof relies on the testimony of three witnesses. There is some controversy as to whether the deposition of Stabo was withdrawn. This need not be determined, as, in any event, it was properly suppressed. This witness testified from certified copies of reports of a commercial agency and what he believed, from information derived at such agency. It does not appear that he made the reports or copies. No argument is required to show that such testimony cannot be received. 2 II. One Peterson testified, in substance, that H. R. Oberholtzer told him that' he was the owner of the stock of goods in controversy, and placed it in C. • M. Oberholtzer’s name to avoid his creditors. The issues involved in the original case are fully stated in 92 Iowa, 602 (61 N. W. Rep. 365). Neither plaintiff nor defendant claimed through or under H. R. Oberholtzer. It is said in Taylor v. Lusk, 9 Iowa, 444, that “declarations of a person while in possession of personal property, explanatory of such possession, as he held it as the agent or for another, or in his own right, are admissible in evidence against a party claiming under him.” The rule has never been extended so as to admit the declarations of a person under whom neither party claims. [341] III. Another witness; Lay, testified that plaintiff applied to him for a loan of three thousand dollars about a year before the failure of C. M. Oberholtzer and said lie wanted to “put it into his cigar business.” The plaintiff denies that he ever had such a [342] conversation. As a general rule, evidence of admissions must be received with caution. The unintentional change of a single word often gives an entirely different meaning to what may have been said. Substitute “the” for “his” in the language quoted, and the alleged statement would be entirely consistent with plaintiff’s claim in the original case. It cannot be said that the consideration of this evidence, contradicted as it is, would be likely to change the result; at least, there is no reasonable ground for so believing. 4 IY. The plaintiff complains of several rulings of the district court, but only one need be considered. The issuance of the writ of injunction was unauthorized, and the motion to dissolve it should have been sustained. The statute provides that, when proceedings on a judgment are sought to be enjoined, the suit must be brought in the county and court in which the j udgment was obtained. Code, section 3896. This rule is imperative, and the district court had no jurisdiction to restrain proceedings on the judgment of the supreme court. Swift v. Conboy, 12 Iowa, 445; Phelan v. Johnson, 80 Iowa, 727 (46 N. W. Rep. 68). Affirmed on defendant’s appeal, and reversed on plaintiff’s appeal.