F. W. Rosenthal & Co. v. Bilger

86 Iowa 246

• Court: Supreme Court of Iowa
• Decided: October 11, 1892
• Status: Published

Opinion

Kinne, J.

The plaintiffs allege that on December' 6, 1888, they recovered a judgment in the superior court of Council Bluffs against Peter C. Miller for three hundred and forty-six dollars and costs; that the defendant, Miller, appealed to the supreme court, where said judgment was affirmed at said Miller’s costs; that the defendants in this action were sureties for said Miller on his supersedeas bond, conditioned that, in case the appeal should be affirmed, they would pay the judgment and costs; that since said bond was executed and filed it has been lost. They attached what they allege to be a substantial copy of the bond. They pray judgment for fotir hundred dollars and costs. The defendants deny each and every allegation contained in the petition. A jury was waived, and the cause tried to the court.

1. Action on lost bond evidence: leading questions. I. On the trial, C. M. Harl, a witness who was shown to have prepared the sivpersedeas bond, was asked this question: ‘ ‘Was it in the usual statutory form of supersedeas bonds!” q^g^on was objected to “as incompetent, immaterial, and leading.” When we have in mind the fact that the witness was the attorney for the defendant in the case in which the stvpersedeas bond was given; that he prepared it; that he was an adverse witness, — it is clear that the court should have allowed much latitude to counsel in conducting the examination. We think he should have been permitted to answer the question. It is permissible to lead an adverse witness'. The form of the bond was certainly material to be shown, and it was competent to show that it was in the usual statutory form, inasmuch as the statute prescribes the terms and conditions of such bonds.

2. __._. admissions. II. The same witness was asked why'it was that he made the statement in the abstract prepared for use in the supreme court that the defendant paq “filed in said supreme court his supersedeas bond, with sureties approved by the clerk thereof.” The plaintiffs offered in evidence that part of the abstract above referred to. Objections were sustained to both the question and the introduction of the abstract. Both of these rulings were erroneous. The witness had admitted he prepared the abstract. His examination disclosed the fact that his memory as to the bond was defective. It was certainly proper to call his attention to a solemn statement, which he had pnt into the record, relating to the bond, and ask him to explain it. The record itself was clearly admissible, as bearing upon the testimony of the witness and the weight to be given to it.

III. The appellant insists that the judgment is against the evidence, and wholly unsupported by it. The evidence in this case, which was in fact introduced, was ample to have justified a finding for the plaintiffs. The evidence before the court without conflict, shows the supersedeas bond was drawn, executed, filed, and approved. The penalty of the bond was shown. The fact that it was a supersedeas bond appears. The appearance, fee, and judgment docket of the court show the filing of a supersedeas bond, its penalty, names of sureties, and date of filing. The testimony sufficiently shows that the terms and conditions of the bond were such as are required to be in a supersedeas bond; especially is this true where there it an entire absence of evidence to the contrary.

3. -: -: objections: waiver. IY. It is claimed that the record of the judgment against Miller was not received in* evidence because objections were made and no ruling had thereon. The defendant having a right to insist 0n a ruling, if he did not do so the presumption is that he waived his objection, and the testimony was admitted. Gable v. Hainer, 83 Iowa, 457.

V. Other questions are raised which, in our judgment, do not warrant extended consideration. 'We have examined them all, and, while mindful of the settled rule that the finding of the court below should not be disturbed if the evidence is conflicting, we are clear that this is not a case where any conflict exists. There is no evidence which militates against the appellants’ right to a judgment. The rulings of the superior court, it seems to us, were unduly technical, and its judgment unwarranted from any view of the evidence. Beversed.