Later v. Haywood

85 P. 494, 12 Idaho 78, 1906 Ida. LEXIS 20

• Court: Idaho Supreme Court
• Decided: February 21, 1906
• Status: Published

Opinions

AILSHIE, J.

(After stating the facts.) — The first four assignments of error go to rulings of the court in settling the issues in the case. These were matters addressed to the discretion of the trial court, and we find no abuse of that discretion in this ease. The fifth and sixth assignments are predicated on the denial of motions by plaintiff to have default entered against defendant. While the defendant was, as a matter of fact, in default, in the strict sense, it was within the power and discretion of the court to extend and enlarge the time for answering, and no injury appears to have resulted from such action.

The seventh assignment is that the court erred in sustaining defendant’s objection to the admission of the evidence of J. F. Bonham. The witness was called, and, after being sworn, testified that he had resided at Rigby, and was acquainted with Later Bros., and also with the defendant; that he had talked with Mrs. Haywood in relation to the matter at issue about one year prior to the trial of the ease. It was shown by the witness that he had never been admitted as an attorney in any court, and that he did not hold himself out as such, but that, on the other hand, he was a conveyancer and kind of general counselor and adviser of the people in the village of Rigby. He advised his neighbors and friends concerning business and legal transactions which arose among them. It does not appear that he had ever been employed by defendant as a legal adviser in this matter. It is sufficient to say that so far as the record discloses, the witness was not disqualified under subdivision 2 of section 5958 of the Revised Statutes.

The last assignment is made against the action of the court in granting a nonsuit. This action was taken under subdivision 5 of section 4354 of the Revised Statutes. A careful perusal of the record convinces us that the evidence produced by the plaintiffs was sufficient to put the defendant to her proof. The evidence, at least, tended to prove all the material allegations of the complaint. The rule requiring the evidence in such cases as the one at bar to be clear and convincing applies only to the determination of the case on the evidence after both sides have submitted their proofs, and has no application to a case where the defendant, resting on plaintiffs’ proof alone, moves for nonsuit. By such a motion the defendant admits the existence of every fact which the evidence tends to prove, or which can be gathered from any reasonable view of the evidence. (Great Northern R. R. Co. v. McLaughlin, 70 Fed. 673, 17 C. C. A. 330; Cane v. Gold Mountain Min. Co., 27 Mont. 529, 71 Pac. 1004; Railroad Co. v. Everett, 152 U. S. 107, 38 L. ed. 373, 14 Sup. Ct. Rep. 474; Cravens v. Dewey, 13 Cal. 40; McKee v. Greene, 31 Cal. 418; Fenton v. Millard, 81 Cal. 540, 21 Pac. 533, 22 Pac. 750; Lewis v. Lewis, 3 Idaho, 645, 33 Pac. 38; Edmisson v. Drumm-Flato Commission Co., 13 Okla. 440, 73 Pac. 958; 6 Ency. of Pl. & Pr. 441.) It is also contended that there was a fatal variance between the allegations of the complaint and the proof submitted: Respondent argues that the evidence shows that whatever claim or cause of action has been disclosed belongs to the Rigby Hardware, Lumber and Manufacturing Company, a corporation, and not to the plaintiffs. This contention rests on the fact that the Later Bros, were the incorporators of the new company, and that the corporation' appears to have succeeded to all the property and rights of the Later Bros. It also appears that the copartnership known as Later Bros, was dissolved sometime prior to the commencement of this action. It was shown, however, that the accounts were turned over to the corporation only conditionally, and that such as might not be collected within a given time should be turned back. So far as disclosed by the record, the right of action rests in the plaintiffs, and a recovery by them will be a bar to a recovery on the same cause of action by the Rigby Hardware, Lumber and Manufacturing Company. If any assignment of the subject matter of the cause of action has ever been made — which fact does not appear — it is not shown that the defendant has ever had any notice thereof either actual or constructive. The dissolution of the partnership does not' preclude the maintenance of an action for the collection of debts and liabilities due, nor from recovering property that belonged to the firm.

The judgment must be reversed, and it is so ordered, and the cause-is remanded for a new trial. Costs awarded to appellants.

Sullivan, J., concurs.