Bernheim Bros. & Uri v. Dibrell & Hill

Cooper, J., delivered the opinion of the court. The court properly set aside the first verdict and awarded a new trial, for on the first trial, at the instance of the plaintiffs, the court-excluded from the room Hill, one of the claimants, while Dibrell, the other claimant, was being examined as a witness. Both claimants were parties to the same issue, and it was the right of' both to be present during the trial. The rule of court by which witnesses ai’e excluded from hearing the testimony delivered by other witnesses does not apply to parties to the cause, who cannot be denied the privilege of being present to examine their own witnesses or to cross-examine those of their adversary. Where a party proposes to testify in his own behalf it is within the power of the court to require him to be first sworn, but this is the extent of the power, and since both Hill and Dibrell could not first testify of necessity one must have been in the room while the other was testifying. In French v. Sale the extent and limit of the rule was indicated, and we have found no authority going beyond the point there decided. [203] On the second trial the court erred, first, in rejecting the evidence proposed to be introduced by the plaintiffs to show that at about the same time of the purchase by the claimants of the goods in controversy, the defendant in attachment made other transfers of property liable to be taken in execution by her creditors; and, secondly, in excluding from the jury certain evidence which had been permitted to go to the jury tending to show her insolvency. On the trial of the claimants’ issue it devolved on the plaintiffs-to show, first, that the transfer of the property levied on was made with a fraudulent intent by the debtor, and, secondly, that Dibrell & Hill, the claimants, were not purchasers thereof in good faith. The fraud of the debtor was an independent fact, and any evidence relevant to that fact was competent. Whatever she did at or about the time of the transaction under investigation calculated in its nature to throw light upon the intent with which she made that transfer, was competent whether it preceded or succeeded the transfer itself. It is not essential to the competency of such evidence that it should relate to transactions contemporaneous with the one investigated. If they are so closely related in time that the intent that governed in the one may fairly and reasonably be inferred to be the intent that controlled the other, then the one sheds light upon the other and is therefore a relevant subject of investigation. If Mrs. Pollard, on the night of the day on which she sold the goods levied on to the claimants, made transfers of other portions of her estate for the fraudulent purpose of defeating her creditors, it is for the jury to say whether such was the purpose of the transfer to the claimants. The intervening time was too short for the court to say as matter of law that the one act could not shed light upon the other. For this reason it was error to exclude from the jury the evidence proposed to be introduced touching the transfer of the notes given for the rent of her lands by her agent on the day following the sale of the goods attached. The plaintiff was permitted by the court to introduce much evi- . dence tending to show that the judgment debtor ivas insolvent at' the time of the sale of the goods attached, or rather that she owed much more than the value of all her visible property subject to [204] execution; but because they could not prove by direct testimony that Dibrell & Hill knew of the existence of such debts, all the testimony in reference thereto was excluded by the court upon motion of claimants. Without intending to pass upon the testimony further than is necessary to the determination of the case as presented to us, we are content to say'that if upon the evidence introduced before the jury, it had found a verdict in favor of the plaintiffs, the court would not have been warranted in setting it aside as not supported by the facts in testimony. The judgment is reversed and cause remanded for a new trial.