Keith v. Briggs

Berry, J. Defendant applied for a change of venue, under Laws 1881, c. 132. Plaintiff resisted on the ground of convenience of wit [187] nesses. • Whether, if the defendant had taken objection to this mode of resistance, and had rested upon his strict rights under his application, it would have been competent for the court to have denied the same, or to have permitted the plaintiff to resist it upon the ground above mentioned, we are not called upon to inquire. So far from taking any such objection, the defendant appears to have furnished counter-affidavits upon the question of the convenience of witnesses. This was a waiver of any strict right which he might have had to insist upon the granting of his application, without reference to any consideration except the fact that his co-defendant Simpson had been joined with him for the purpose of evading the statute as to change of venue; and it was also a consent that the question whether the convenience of witnesses required the case to be tried in Winona county, might then and there be heard before the court sitting in and for that county. If a change of venue had been made to Clay county, (as prayed,) there is no doubt that it would have been proper for the plaintiff there to have moved that the venue be changed a second time, and the case returned to Winona county for trial, for convenience of witnesses. And there is no reason why it was not competent for the parties (if they saw fit, as they did in this case) to submit the whole question of venue at once to the general jurisdiction of the district court of Winona county. Most of the exceptions taken by defendant which require consideration here may fairly be disposed of with comparative brevity. 1. It was entirely competent to show by parol a consideration for the deed of assignment from Heffernan to defendant, different from and not inconsistent with that therein expressed. Jordan v. White, 20 Minn. 77, (91.) 2. Any error in refusing to dismiss an action at the close of a plaintiff’s ease in chief for deficiency of evidence is cured by the subsequent introduction of proper testimony, by which the deficiency is supplied. Berkey v. Judd, 22 Minn. 287; Deakin v. Chicago, Mil. & St. Paul Ry. Co., 27 Minn. 303. We agree with the learned trial judge that the variance between the complaint and the testimony, as to the consideration of the assignment, was not substantial, and could not have prejudiced the defendant. It might properly be dis [188] regarded, or cured by the amendment which the court permitted. Upon this basis we are inclined to believe that there was no want of evidence to sustain the plaintiff’s claim at the close of his case in chief. If, however, there was such want, it was supplied by the evidence subsequently received. As respects the statute of limitations, it appears to us, as to the judge below, that upon the evidence the defendant may fairly be taken to have received the assignment on terms by which his duty to pay over to Heffernan dated from May, 1877, when he sold to Morgan. This action was commenced in less than six years after that date. 3. We see no occasion to criticise the action of the trial court in reference to the proposed amendment of the answer. For the reason assigned by the trial judge, we think the discretion intrusted to him in such cases was not improperly exercised. This conclusion disposes of the several errors (in excluding evidence and in the charge) assigned in the sixth subdivision of defendant’s brief. The evidence excluded was irrelevant, and the instruction complained of went upon that theory. 4. As there appears to have been no substantial attack on the written assignment of Heffernan to the plaintiff, there was no error in the instruction to the effect that the plaintiff had acquired whatever •cause of action Heffernan had against the defendant. 5. We fully agree with the learned district judge as to the failure of defendant to show proper diligence in endeavoring to discover the newly-discovered evidence, on account of which, among other things, he asks for a new trial. On the contrary, the affidavits, to our minds, affirmatively disclose a want of ordinary diligence and prudence on the part of the defendant himself in preparing his case for trial, by looking up the evidence necessary to sustain his defence, — evidence, too, which would appear to have been wholly within his own knowledge. We observe, further, that the newly-discovered evidence is admitted in defendant’s brief to have been cumulative, and much of it is contradicted by the opposing affidavits on plaintiff’s part. The failure to ascertain the time when the regular term of the district court in Winona county would be held, is not, in our judgment, -excused. [189] These are all the matters of which we deem it necessary to speak specially in this opinion. Order affirmed.