Moon v. Helfer

The opinion of the court was delivered by HortON, C. J.: On the 20th day of January, 1880, the defendant in error (plaintiff below) brought this action against plaintiff in error (defendant below), in the district court of Lyon county, to recover the sum of $15,000, being the alleged value of certain goods, wares and merchandise, of which lie claimed to be the owner, taken by plaintiff in error, as sheriff, under various orders of attachment issued in actions pending against one N. Stetter. On the 16th day of February, 1880, plaintiff in error filed his answer alleging the levy upon the goods by virtue of the writs of attachment; that the claim of defendant in error was under a pretended purchase from Stetter; that the purchase was fraudulent and void as against his creditors; and that the sale by Stetter to Heifer was made with the intent to hinder, delay and defraud the creditors of Stetter. A reply was filed in the form of a.gen [144] eral denial to this answer, the 8th day of February, 1880. The March term of court for Lyon county convened March 2d, 1880. Plaintiff in error, with the consent of parties and by leave .of court, filed an amended answer, more particularly alleging the same defense stated in the original answer, to which defendant in error on the same day replied. The case was then called for trial. Afterward the jury returned a verdict for defendant in error, and against the plaintiff in error, for $9,292.78. The first allegation of error is, the refusal of the trial court to grant a continuance of the cause over the term. The application for the continuance was supported by affidavits of H. M. Jackson, one of the attorneys of plaintiff in error, a member, of the law firm of Messrs. Greenfee & Jackson, of Atchi-son, the attorneys for several of the attaching creditors in the actions pending against N. Stetter. They set forth substantially two reasons in support of the application: first, that defendant had not had time after issue joined, owing to the circumstances surrounding the case, to prepare for the trial at that term; second, on account of the absence of evidence, which defendant had been unable to procure. As the affidavits did not conform to the requirements of § 317 of the code, the question presented is, whether there was any error in the action of the court under § 316. Granting or refusing a continuance under the provisions of that section is so largely within the discretion of the trial court, unless it appears that the court has abused its discretion, that this court cannot reverse the ruling. The record discloses that on March 17th Mr. Jackson announced in open court, that if his client could procure the depositions of certain parties in Atchison before the 23d, he would be ready for trial, and asked the case to be set down for trial certain on that day. This was done by the court, with the assent of the opposing party. The affidavits set forth the failure to procure the depositions of only one Atchison witness, viz., M. N. Stetter • but as he appeared and testified on the trial on the part of defendant below, any error there might have been in [145] -overruling the application on account of the absence of his evidence was thereby wholly cured. The other statements in the affidavits were for time to obtain the testimony of attaching creditors, to the purport that at and before the levy of the several attachments the persons named as creditors of N. Stetter in the amended answer were the actual, bona fide creditors of N. Stetter to the amounts stated in the answer; that if time was granted it could be proved that Heifer was the purchasing agent of N. Stetter, and knew of his indebtedness; that proper preparation for the trial of the cause on the part of the defendant required an investigation into facts and circumstances existing in and known to parties residing in the ■cities of New York, Chicago and St. Louis, which were material to the defense; that such facts and circumstances came ■•to the knowledge of the attorneys of defendant within only ■one week prior to such application, and that they had no time to obtain proof thereof since the issue was joined. On the hearing of the application the plaintiff offered' to and afterward admitted that the parties named as creditors at the levies ■of the attachments were the actual and bona fide creditors to the amount set forth in the answer; and the fact that plaintiff .had been a purchasing agent for N. Stetter was fully proved •on the trial, and undisputed. Exactly what was expected to ■be established by the facts and circumstances existing and known to the parties residing in New York, Chicago and St. Louis, other than that those facts and circumstances would tend to prove matters offered to be admitted, and plaintiff’s .knowledge of the indebtedness of N. Stetter, was not stated. Therefore, the only matter of importance in the application to be' seriously considered was the request for time to obtain proof that plaintiff had knowledge of the indebtedness and insolvency of N. Stetter. Now in these days of fast mails and faster telegraphic communication to all parts of the country, it is evident from the facts disclosed in the affidavits, the defendant ought to have been able by the exercise of due diligence to have set forth in support of his application the names •of the absent witnesses, and the facts in detail which he be [146] lieved each of the witnesses would prove. This not having-been done, we cannot say that the court abused its discretion. In view of the amount involved, the brief pendency of the action and various circumstances connected with the case, the court might well have allowed the continuance; and of' course if the court had granted the application, we would not interfere. Objections are also taken to the admission in evidence of the power of attorney executed February 27, 1869, by N. Stetter to M. N. Stetter, and the exclusion of certain evidence-, of one Henry Friend. As N. Stetter fully ratified the action of M. N. Stetter in making the sale to plaintiff, whether the-power of attorney authorized the sale was wholly immaterial. Its introduction could not have prejudiced the defendant on the trial, and as the principal made no objection to the action of his agent, it does not lie in the mouth of defendant to insist that such principal was deceived or acted in ignorance of' his rights. The evidence of Friend was not competent on cross-examination, and its rejection not injurious in any view,, as defendant proved all the facts attempted to be brought out on the cross-examination of Friend by M. N. Stetter, and the proof was undisputed. As to the instructions, in view of their great length it is-useless to reproduce them here. The trial court gave the law fully to the jury, with the single exception that we perceive in the record no special reason for the charge about exemplary damages. Yet this is not sufficient, even if erroneous, for a reversal of the judgment, as the jury only assessed the damages at the value of the property at the time of the conversion, as proved by witnesses, adding seven per cent, interest thereto. It is finally alleged that the verdict is against the evidence, and that the court erred in not granting a new trial for newly-discovered evidence. Upon the first point, as we cannot say that there was a total want or failure of evidence to sustain the verdict, we cannot disturb it. The jury were the sole judges of the credibility of the witnesses, and although there [147] was much testimony before the jury tending to throw grave' suspicion upon the sale to plaintiff, and even sufficient to have fulljr justified a verdict for the defendant below, yet, as the evidence of some of the witnesses fully sustains the verdict, it must stand. We cannot say that those witnesses must be disbelieved, after the jury and the trial judge, with better opportunities for judgment, have thought otherwise. In regard to the alleged newly-discovered evidence, no sufficient showing of diligence to obtain the same was made; nor could the trial court fairly say that the evidence was so material that upon another hearing, if granted, it would probably produce a different verdict. The record in this case is very extensive. We have examined it with great attention, and while the rulings of this court upon the many questions involved are very important to the parties, they present no new matters of law for discussion; and as similar questions have time and again been passed upon in the previous decisions of this court, we have not deemed it wise or needful to give our views at length upon the various points submitted for our consideration. Upon the whole record, the judgment of the district court will be affirmed. All the Justices concurring.