Citizens' Bank v. Rhutasel , 67 Iowa 316 ( 1885 )

Reeb, J.

1. administkatob: by whom appointed; evidence. On the trial intervenor offered in evidence his letters of administration. These letters were signed by the clerk of the circuit court, and were issued under , „ the seal ot that court, and were dated at a time when the court was in session in Franklin county. Plaintiff objected to the admission of said letters in evidence on the ground that the clerk had no power during the term of the court to appoint an administrator, but the objection was overruled.

It will be conceded that during the session of the court the power to appoint administrators is in the court, and not in the clerk. Code, §§ 2312, 2315. It does not appear, however, that the appointment in question was made by the clerk. The only evidence that it was so made is the fact that the letters of administration are signed by him. But the office of the letters is to define the powers of the administrator, and they are not the evidence of the source of his appointment. If the appointment is made in term time, it should be made by the court, and the clerk has power in vacation to make it. But in either case it is the duty of the clerk to issue the letters of administration, and they should be signed by him, and be issued under the seal of the court. See Code, § 2365. The objection wras properly overruled, then, on the ground that the letters of administration afforded no evidence of the fact on which it was based, and we need not consider whether the regularity of the appointment could be questioned in a collateral proceeding, a question, which was argued by counsel.

2. evidence: readilfg part takenbut not versary. 3. practice sumptiSiun coíírt.01 tnal II. Plaintiff offered, to read the answers of a witness, whose deposition had been taken, to certain of the interrogatories which were asked him. The deposition was taken by intervenor, but was not introduced by him, and he objected to plaintiff’s being permitted to introduce but a portion of it. It is well settled that one party may introduce a deposition which was taken by his adversary, but which he declines to introduce. See Hale v. Gibbs, 43 Iowa, 380; Wheeler v. Smith, 13 Id., 564; Pelamourges v. Clark, 9 Id., 1. But whether he should be permitted in such case to introduce but a portion of such deposition depends, we think, very largely on circumstances. If the witness has been examined as to different transactions, we see no reason why the opposite party should not be permitted to introduce his evidence touching one or more of the transactions, while declining to introduce it as to the others. But he clearly ought not to be permitted to introduce a portion of his testimony on any given subject while declining to introduce all that the witness had said on that subject. It would be manifestly unjust to permit him to select such portion of the testimony with reference to a particular transaction as is favorable to him, and introduce that, while he refuses to offer the portions which are unfavorable to him. In the present case counsel for plaintiff stated, when he offered to read the answers of the witness, that they were offered for the purpose of establishing certain facts. The deposition is not contained in the abstract, nor is it stated therein that the offer included all that was testified to by the witness with reference to the facts sought to be proven by his answers. We are unaRle to determine from the record, then, whether the offer should have been allowed or not. The presumption, however, is in favorof’ the correct ness of the 'ruling of the circuit court on the question.

4. evidence nnvemíby gage 1 ¡dentity: description. 6 cross ex-wi)affsaiín^: proper. .III. Defendant, N. J. Rhutasel, was examined as a wit ness on behalf of the intervenor, and testified that the propkrty attached was the saíne that was covered by the chattel mortgage given by him to Lawrence Rhutasel. • On cross-.éxainination plaintiff’s . . counsel asked the witness what property he gave his father a mortgage on, and when he made the mortgage, and whether he delivered the mortgage to his father on the day on which it bears date. The first question was disallowed on intervenor’s objection that the mortgage was the best evidence of what property was covered by it, and the others were excluded on the objection that they were not cross-examination. These rulings are assigned as error. We think they were correct. The mortgage .was the only competent evidence of the contract between .the.mortgagor and mortgagee, and it shows what particuliar property is covered by it. It was competent to prove’ by parol that the property attached was the- identical projierty covered by the mortgage. But plaintiff’s question did not call for a. description of the property, nor did it relate to ^he identity of the mortgaged property with that seized on the writ. It in effect asked the witness to determine what property was covered by the mortgage, and clearly it was incompetent. The other questions had no relation to the subject on which the witness ivas examined in chief, viz., the identity of the property, and were properly excluded on the ground that they were not proper cross-examination.

g. practice: diot:°exani-er" ciuittefmortgage. IY. Plaintiff assigns as error the order of the court directing a verdict for the intervenor. The ground upon which the order was made was the insufficiency °t’ the evidence to establish the claim made by plaintiff. We have held that the court is justified ¿a]¿ng a case from ¿pe jury on ¿pjs ground only when there is an entire absence of evidence tending to establish the cause of action or defense which is alleged in the pleadings. Sperry v. Etheridge, 63 Iowa, 543. Uncler the issues plaintiff was required to establish (1) that the defendant N. J. Rhutasel executed the mortgage under which intervenor claims the property with intent to hinder or delay or defraud his creditors, and (2) that the mortgagee accepted the instrument with a like fraudulent intent.

Without setting out the facts and circumstances which the evidence tends to prove, we deem it sufficient to say that they have some tendency to prove a fraudulent intent by N. J. Rhutasel. If the ease had involved the question of his intention alone, the plaintiff would clearly have been entitled to the verdict of the jury on the question. But there was, as we think, an entire absence of evidence tending to prove a fraudulent intent by Lawrence Rhutasel, the mortgagee. The existence of the indebtedness for the security of which the mortgage was given is not denied. Nor is it claimed that the debt was one for which the creditor might not honestly and fairly demand and accept security. The creditor probably knew that his debtor was embarrassed, and he may have known that the mortgage would operate to defeat or delay other creditors in the collection of their debts. But with a knowledge of these facts he might lawfully demand security for his debt. And the evidence, we think, has no tendency to prove that he accepted the mortgage with any other motive than a desire to secure his own interest.

We think, therefore, that the case was one in which the court might properly direct the verdict.

We find no error in the record.

Affirmed.