Brewster v. Miller

GATES, J.

The complaint in this case alleged that plaintiff and Herbert Brewster were husband and wife, the owners of certain lots in S-isseton, S. D., occupied by them as a homestead, and *617 the owners of an automobile; that in June, 1911, plaintiff and her husband sold said premises and automobile to defendant; that “it was expressly agreed by and between s.aid defendant and this plaintiff that defendant would, in consideration of the execution and delivery of the deed and bill of sale hereinafter mentioned, pay to plaintiff, over and above all moneys which he had agreed to pay to said Herbert Brewster, the sum of $1,000, and that the-same should be paid to this plaintiff in person only; -that pursuant to said agreement said plaintiff did execute and deliver jointly with said Herbert Brewster a deed of the above-described premises and a bill of sale of said automobile to the said defendant, and that said automobile was delivered to and -accepted by said defendant;” and that said sum, had not been paid. The answer admitted the marriage; denied that plaintiff was the owner of any interest or part in said real estate; alleged that same was purchased jointly by Herbert Brewster and Carleton Brewster prior to its purchase by -him; denied that plaintiff was the owner of any interest in the automobile; alleged that the same was purchased and owned by plaintiff’s husband alone; alleged that defendant purchased said real estate from Herbert Brewster and Carleton Brewster and the automobile from Herbert Brewster, who was the owner thereof; that at the time of the purchase he paid the full purchase price in money to Herbert Brewster and denied all allegations that he promised to pay any part of the purchase price to plaintiff.' The case was tried to a jury which rendered a verdict for plaintiff for $1,000 and interest. From the judgment and order denying a new trial, defendant appeals.

[1] The first, second, fifth to tenth, inclusive, twelfth, thirteenth, and seventeenth assignments of error relate to -the admission or exclusion of testimony. The questions and -objections thereto and the rulings of the court thereon -do not appear in appellant’s abstract of the record, nor are there any exceptions in such abstract upon which to base said assignments. They are therefore not properly before this court for review. Former rule 7 of this court ( 124 N. W. vii ).

[2] The third and fourth assignments relate to questions asked the defendant wherein it was sought to show that plaintiff had urged defendant to buy the ho-use. She had testified that she had not. If there was any error in excluding this testimony, it *618 was cured by defendant’s subsequent testimony “that he had never had any conversation nor dealing with plaintiff, and that he had never talked with her about it in his life.”

[3] The eleventh assignment relates to the striking out of the testimony of the witness Opheim. He testified that he formerly owned the' automobile; that it was secondhand; that he sold it to plaintiff’s husband and no part of it to plaintiff; that it had not all been paid for at the time of the sale, but had practically all since been paid. This was clearly irrelevant to any issue in the case.

[4] The next three assignments relate to questions asked the witness Kennedy in relation to conversations between plaintiff and defendant in regard to the sale of the house. If, the witness had been permitted to answer these questions and had testified that plaintiff and defendant had talked about the sale of the house, the answer to such questions would have been contradictory to defendant’s express testimony theretofore given and contrary to the theory of the defense. -Surely the defendant ought not to -be thus permitted to impeach hi-s -own testimony. Defendant cannot be prejudiced by the exclusion of testimony offered by him which would, if received, show that he had testified falsely. The rulings of the court excluding the answers to such questions were deafly correct.

[5-7] The next assignment relates .to remarks made -to the jury by plaintiff’s counsel as follows: “After the scheme was carried out and the house was deeded to George Miller, Herbert Brewster deserted the plaintiff and ran away and left her.” Assuming, without deciding, that this assignment is properly before us, it appears that th-e court in its discretion overruled defendant’s objection to- such remarks. Moreover, appellant is not now in position to urge this objection, even if properly raised. In his affidavit accompanying the motion for a new trial he stated: “Upon the trial of said case plaintiff testified, in effect, that her husband, Herbert Brewster, had deserted her immediately after she had signed the deed for the house described in the complaint.” The evidence on this subject is not in the abstract of the record. If she did so testify, and it will be presumed -that she did so without objection, the remarks to the jury made by. respondent’s counsel *619 were justified. Appellant by his affidavit has precluded himself from now claiming that she did not so testify.

[8] The next assignment relates to alleged error in refusing a new trial upon the ground of newly discovered evidence. The affidavit of the defendant, upon which the motion for a new trial was based, flatly contradicts his own testimony at the trial, wherein he stated that he had never had any transactions or conversations with plaintiff in regard to the sale of the house. Nor did he even claim that he was mistaken in his former testimony. The chief purport of the affidavit was to impeach the credibility of plaintiffs testimony. The other features of the affidavit tend to show a conspiracy .between plaintiff and her husband, the object of which was to let it appear at the trial that the plaintiff was deserted and wronged, and, after securing the judgment in' this case, the plaintiff and her husband would again live together and enjoy the proceeds of the judgment as well as the proceeds of the property. A motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the court. Smith v. Insurance Co., 21 S. D. 433, 113 N. W. 94 ; Barcus v. Prokop, 29 S. D. 39, 135 N. W. 756 . We fail to find any -abuse of such discretion.

Binding no error in the record, the judgment and order -denying a new trial are,-affirmed.