Yori v. Cohn , 26 Nev. 206 ( 1901 )

ON REHEARING. The judgment was reversed upon the ground that a continuance should have been granted. (Yori v. Cohn, 65 P. 945.)

A rehearing has convinced me that the judgment should have been affirmed, for this reason: The affidavit for continuance shows that at the time the case was set down for trial in the district court the witnesses for whose absence the continuance was asked were in the State of California, and beyond the jurisdiction of the courts of this state. Under these circumstances it was the duty of appellant to have procured their depositions. Their promise to be present at the trial will not excuse him if they do not attend.

A preliminary motion was made by counsel for respondent to strike from the files a document styled "Reporter's Transcrit of Testimony" for reasons specified in the notice, one of which was that it is not certified by the district judge, or designated by him as having been read or referred to on the motion for new trial, nor agreed to by the attorneys in the case as having been so used.

Practically the same question, and upon the same testimony, was before us in a proceeding in mandamus commenced by appellant against the district judge requiring him to identify this same testimony, or to show cause, etc.

At the hearing in that case the testimony of the district judge was to the effect that the statement had not been agreed to by counsel, and that he had in fact settled it after notice given, and that the testimony here mentioned was not used or referred to on the hearing of the motion for new trial. Testimony tending to support appellant's position was also introduced, but the court held that, as the testimony was conflicting, appellant had failed to establish a clear legal right to the writ, and it was therefore denied. (State v. Mack, page 80,ante.)

The purpose of appellant in that proceeding was, and his opposition to this motion is, to make the testimony which the certificate of the district judge impliedly, and his evidence directly, shows was not read or referred to upon the hearing of the motion for new trial, a part of the record on appeal in this case.

By Section 197 of the civil practice act it is made the duty of the judge to settle statements upon motion for new trial which have not been agreed to. Allowing proper credit to the certificate, it appears therefrom that the statement was not satisfactory to the opposite party as originally prepared, and that the judge determined the claims of each side according to the facts, and made the statement conform to the truth.

His certificate that the statement had been allowed by him, and is correct, is the authoritative record in this court, and cannot be impeached by extrinsic evidence. If defective or incorrect, it must be corrected in the district court. (Gardner v. Railway Co., 68 Iowa, 588;Pennsylvania Co. v. Sears, 136 Ind. 460;Bonds v. Hickman, 29 Cal. 460.)

At the close of plaintiff's case a non-suit was moved upon the ground that the bill of sale had not been delivered to the vendee; that, therefore, no title had passed, and the suit was prematurely brought. Testimony had been introduced tending to prove that the property described in the complaint had been sold and delivered to the defendant. If there was a condition in the bill of sale or in the agreement of the parties by which title was not to pass except by the delivery of the bill of sale to the vendee, it was a condition favorable to the vendor, and solely for his security in the matter of payment. He could have waived the condition if he chose, and did voluntarily waive it, in fact, by delivering the property to the vendee. The motion was properly overruled.

Numerous exceptions appear in the record as having been taken at the trial to the rulings upon evidence. Those to which importance is attached are cured, if error occurred, by the subsequent admission of the excluded testimony. A telephone message was introduced in evidence from a bank in Reno to the effect that it would honor appellant's check for the sum demanded in the complaint. This evidence had no bearing upon any issue, and should have been excluded, but its admission could have done no possible injury to the appellant.

The exceptions touching the instructions have not been argued, and need not be considered, for the reason that the facts established show that the judgment is so clearly right that it should not be reversed for error, if there were error, in admitting or excluding evidence or the giving of an erroneous instruction.

The action was to recover judgment for $20,246.69, less admitted credits upon a sale of personal property. Appellant admitted the purchase, but defendant upon the ground that respondent had agreed, in connection with the sale, to assign a lease which he had of the Klauber ranch, where the property was; that he had not assigned the lease, and that the property, without the leasehold right, was of little or no value to appellant; that respondent had also agreed to sell none but sound and healthy cattle, and the cattle sold were unsound and unhealthy, and he claimed damages in the sum of $10,000, caused by respondent's interference with the possession of the property.

At the trial respondent contended that he had never agreed to assign the lease of the ranch for reasons which need not be stated, but he had agreed that he would leave the ranch, and appellant could take it, and assume the risk of possession, with the owner of the legal title.

Upon cross-examination appellant himself corroborated this view. He also testified to the correctness of an inventory containing a list of the property, and the agreed price for each item; that he counted the cows, weighed the cheese and butter, estimated the value of the hay, and accepted the property at the prices set opposite the several items; that the price for all was $20,246.69; that respondent never interfered with his possession, except by the attachment by the sheriff for its purchase price.

By these admissions appellant abandoned all defense to the action except as to the condition of the cattle. There was a contention upon this subject, but, conceding all that may be claimed by the evidence, it could not materially affect the verdict.

It is ordered that the judgment and order be affirmed. MASSEY, C. J.: I concur.