Humphrey v. Havens

9 Minn. 318

• Court: Supreme Court of Minnesota
• Decided: July 15, 1864
• Status: Published

Opinion

By the Court

Emmett, C. J.

'There appear to be three distinct cases on the calendar at this term, between these same .parties, all, however, arising out of the single action heard and decided in the Court below, and which are accounted for as follows: It appears that the Plaintiffs first appealed from the judgment or decree rendered against them; but subsequently claiming to have discovered new evidence material to the issues, they moved on that ground for a new trial, and, the motion being denied, they again appealed from tbe order denying tbe same. Afterwards, it being found that tbe appeal from tbe judgment or decree was not witbin six months from tbe time tbe decision therein was actually rendered, although within six months from the time of entering the same on the record, the Plaintiffs sued out their writ of error, (the same being within time,) expecting thereby to take advantage of errors occurring at the trial, should their said appeal be dismissed.

The Defendants now move, first to dismiss the writ of error, because of the existence of the two appeals — next, to dismiss the appeal from the order denying a new trial; because, as it is claimed, every error therein alleged is included in and can be considered in disposing of the appeal from the judgment; and, lastly, they move to dismiss the last-mentioned appeal, because of the lapse of time, as before noted.

We will consider these several motions in the order of time in which the proceedings occurred to which they severally relate— and, first of the appeal from the judgment.

The motion to dismiss this appeal is no doubt predicated upon the decision of this Court in Griffin vs. Furlong, 3 Minn., 207, where it was held that the year within which a writ of error must be issued, commences to run from the time of making the decision by which the rights of the parties are determined and adjudged, and not from the time when such judgment is perfected by being entered of record. We have, however reluctantly, come to the conclusion that we ought not to follow this decision. We believe that the interpretation therein given to the statute is not in accordance with the spirit, however it may agree with the letter of the law, and that to date the time for a writ of error, or appeal from the actual entry of the judgment or order from which it may be taken, is more in consonance with the old practice, and the practice of the courts in other states, and that it avoids all perplexing questions as to the precise time when a decision or order is actually determined on, by establishing what may be termed an initial point, which is certain and can never lead astray. The question, we may also observe, is one of mere practice, involving no principle, and we make the change as much for conve-nieuce in tbe practice as anything else, and with the less hesitation because the decision referred to was not made by a full bench.

The motion to dismiss the appeal from the judgment, is, therefore denied.

The appeal from the order denying a new trial is not, in our opinion, liable to the objection urged against it on the motion to dismiss. On an appeal from a judgment nothing is reviewed which took place subsequent to the entry of the judgment; while a motion for a new trial, although it may embrace all the alleged errors up to that time, may, nevertheless be, and in this very case actually was predicated wholly upon matters which have no place in the record previous to the judgment. In order, therefore, for a party to avail himself of any error of the judge in deciding a motion for a new trial, founded wholly on matters subsequent to the judgment, he must of necessity take a distinct appeal from such decision, and on the hearing he would probably be confined solely to such matters as were brought to the notice of the judge on the hearing of said motion.

The motion to dismiss this appeal must also be denied.

But in regard to dismissing the writ of error, we think the motion should prevail; because the Plaintiffs having perfected an ap-pealfrom the judgment, as hereinbefore decided, can have all questions heard and decided, upon the hearing thereof, which could be considered and determined on writ of error; and the statute does not contemplate that the concurrent remedies, by writ of error and appeal from the judgment, shall both be pursued at the same time, nor that one may follow after a hearing and determination on the other.

It will be perceived that the foregoing disposition of the several motions to dismiss, leaves the appeal from the judgment and the appeal from the order denying a new trial still pending. We shall confine ourselves to the consideration of the latter, and will refer to the record of the trial and proceedings prior to the judgment, so far only as may be necessary.to show the bearing and materiality of the questions on the motion for a new trial.

The main object of the action commenced by the Plaintiffs was to hold the Defendant, Palmer E. Havens, to the performance of a certain agreement under seal, dated October 14, 185V, (designated in the case made as' exhibit “ K,”) and signed by the Defendant, Harriet E. McConkey, (then Harriet E. Bishop,) and the said Palmer E. Havens, by the said Harriet, as his attorney in fact. By this agreement the said Harriet and the said Palmer, in consideration of certain deeds of lots (known as the Kinney and Conlee lots,) made to them by one Andrew M. Torbet, had agreed to take the place of said Torbet, and pay a certain promissory nóte and take up a certain mortgage on the real property conveyed to them by said deeds.

The said Palmer insisted, in his defence, that the said Harriet was not authorized to make any such agreement for him; and, on the other hand, the Plaintiffs contended, that whether or not such authority was originally given, the said Palmer had since fully ratified the act of said Harriet in his behalf. On the trial in the court below, the Plaintiffs, in order to show such ratification, gave in evidence a certain agreement, between the said Palmer on the one part, and the said Harriet and her husband of the other part, dated Oct. 2, 1858, (known in the case as Exhibit M,) wherein the several purchases, loans, etc., made by the said Harriet as the agent of the said Palmer were recited, including the purchase of the said Kinney and Coulee lots, referred to in said agreement marked Exhibit K, and in which the encumbrances thereon before mentioned were referred to, and certain provision made for their payment. To rebut this evidence, or the inference which the Plaintiffs claimed to arise from it, the said Palmer introduced the testimony of said Harriet, wherein she swore that although she had at the time by letter informed the said Palmer, who was then residing in Essex, New York, of the conveyances to him and to her, of the said lots, and of the amount supposed to be paid therefor, she did not think she gave him a full statement of the purchase and the circumstances attending it, and that she had no recollection of mentioning to him the said agreement of indemnity (Exhibit K,) at the time the said agreement marked Exhibit M was executed, or of ever informing Mm of snob agreement. He also, for the same purpose, gave in evidence Ms own deposition wherein be testified that he had never heard of said agreement of indemnity until some time in the month of November, 1859, when he was informed thereof by a letter from Torbet, to whom the indemnity was given.

He also gave in evidence his reply to said letter, wherein he had so stated his ignorance of said agreement, and repudiated the act of said Harriet on the premises.

The Court, to whom the issues were submitted, found for the Defendants, and the Plaintiffs appealed, as before stated.

Afterwards the Plaintiffs made a motion for a new trial, on the ground of certain newly-discovered evidence, which they produced on the hearing, in the shape of two letters from the said-Palmer to the said Harriet, one of which was dated February 6, 1857, and the other December 23, 1857. In that of February 6, 1857', the following passages occur, to wit:

“ Yours of the 22 d ult., enclosing deed of five acres is at hand. * * * I am so busy that I have but a moment’s time to write. It is just as well for you to receive conveyances to yourself, and then immediately re-convey to me. In a few days I shall send you a full power of attorney to sell and convey for me. * * You can trade and exchange property, and do as you choose, writing me often and minutely of your doings.” * *

The letter of Dec. 27, 1857; contains the following:

“ I have to-day examined your statements to me. All seems intelligible except your entry relative to Allen’s addition to Dunn-ville, Wisconsin. You say ‘ purchase price $1,200, paid down $1,200, now due, $300,” and in your condensed statement you note $100 invested in this purchase. I notice we are some in debt for the £ Gonlee and 7 out-lots.’’ I do not like to be in debt, and shall be in favor of paying all up within the next six or twelve months, as soon as I convert my eastern property and paper to cash. You can, no doubt, get a handsome discount for prepayment.” * * * * ******

It will be observed that one of these letters is dated some months prior to the making of the contract of indemnity, and the other some time afterwards, but long before the execution of the agreement between the said Palmer, and the said Harriot and her husband, marked Exhibit M, and before referred to, in which the incumbrance on these lots is mentioned and provision made for removing it as before stated.

"We cannot, therefore, resist the conclusion, that,'had these letters been produced at the trial, they would not only have aided materially in the determination of the important question of ratification of the act of said Harriet, in executing the agreement of indemnity (Exhibit K,) on behalf of said Palmer, but would have thrown some light on the question of her original authority. The Judge of the court below did not, however, pass upon the question of materiality, but,' as we learn from the brief opinion filed, confined his decision solely to the ground that the affidavit used on the hearing of the motion, disclosed no diligence on the part of the Plaintiffs to obtain such evidence at the trial.

This affidavit shows that the Plaintiffs were entirely ignorant of the existence of these letters until some time after the trial— that the knowledge thereof was then communicated to them by the husband of the said Harriet, one of the Defendants, who had obtained possession of them; and that he would not even then consent to their being used by the Plaintiffs, until after they had paid him a consideration therefor in money. It also shows that previous to the trial the Plaintiffs had served a notice on the attorneys of said Palmer for the production of all correspondence between him and the said Harriet, and that no correspondence was produced.

We are of opinion that the giving of this notice was all that the Plaintiffs could reasonably have been expected to do under the circumstances, and that the failure of the Defendants to produce any corresjDondence in response to such notice would justify the Plaintiffs in assuming that no letters had passed on the subject. But this is not all. The said Palmer had denied all knowledge of the transaction up to a certain specified time, and his deposition was on file previous to the trial, in which be had most unequivocally asserted Ms entire ignorance of the existence of tbe agreement of indemnity to wMeh said Harriet had signed Ms name. .

The Defendants contend, however, that having called for a correspondence, the Plaintiffs are presumed to have known of its existence, and were guilty of negligence in not elicitmg the fact by a cross-examination of the said Harriet, while she was on the stand as a witness.

There is some force in this position, in view of the general terms sometimes used by Courts in endeavoring to lay down a general rule on the subject, but it is not easy to lay down a rule that is inflexible; and although a certain degree of diligence is always required in these cases, yet the same strictness should not be insisted on, when the party objecting is,himself responsible to any extent for the failure of the other to discover or produce the evidence on which the motion for a new trial is founded. In this instance, the Plaintiffs having demanded all correspondence, might be presumed to have some suspicion or intimation that a correspondence existed, but nothing further. But when the Defendants failed to produce a correspondence, and the said Palmer had sworn that he knew nothing of the transaction to which it related, the Plaintiffs might well indulge the belief that none such existed. And in addition to this the Defendant Harriet, the person to whom the letters were addressed, stated, in her testimony, that she did not think she had ever informed the said Palmer of the agreement of indemnity to which she had signed Ms name ; and as she appears from her testimony to be an intelligent and truthful witness, the plaintiffs were naturally led to the conclusion that there could have been no correspondence on the subject. No one certainly should be held guilty of negligence, for not discovering, despite these several denials, that the said Palmer had previously written letters such as these, and that they were then in the possession of the said Harriet or her husband. The Plaintiffs had a right to expect that all correspondence between the said Palmer and the said Harriet relating to the purchase of the lots in question, would be produced on the trial, and the failure of the Defendants to produce any such, correspondence, coupled with the testimony of the Defendants Palmer and Harriet before referred to, excuses the Plaintiffs for a failure to elicit the fact of the existence of such correspondence on cross examination. We are therefore of opinion that the Court below erred in refusing the plaintiffs a new trial. And this conclusion renders it unnecessary to consider the errors assigned on the appeal from the judgment.

The order denying a new trial is reversed, and a new trial. awarded.