[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 294 It is a well-established rule that conversation with a deceased person is not admissible in evidence. Sec. 8966 N.C.L.; Reinhart v. Echave, 43 Nev. 323, 185 P. 1070; Vesey v. Benton,13 Nev. 284; Forsyth v. Heward, 41 Nev. 305, 170 P. 21; Jones on Evidence, p. 1221, par. 787.
The trial court erred in admitting the testimony of witness Johnston on cross-examination relative to the mortgage to the bank. It was not cross-examination, and there was no evidence of any mortgage to the Churchill County Bank. 38 R.C.L., p. 607, par. 195; Underhill on Criminal Evidence, p. 220; State v. Carter, 21 N.M. 166, 153 P. 271; Chicago R.I. P. Ry. Co. v. Beatty, 118 P. 367, at 370; Brace v. Northern Pac. Ry. Co., 115 P. 841.
The trial court erred in admitting in evidence the chattel mortgage executed by J.H. Johnston to the Churchill County Bank, and the chattel mortgage executed by Eugene Raker and Adeline Raker to Churchill County Bank. There was no issue raised and no affirmative claim made by the Churchill County Bank wherein any title or lien of any kind was claimed to the cattle which it seized. 21 R.C.L. p. 534; Schudel v. Helbing, 26 Cal.App. 410,147 P. 89; Dow v. City of Oroville, 124 P. 197; Mott v. Minor,106 P. 244; Borghart v. City of Cedar Rapids, 101 N.W. 1120; Robinson v. American Fish Oyster Co., 119 P. 388, at 391. *Page 295
The testimony of Mr. Johnston as to whether certain cattle were those covered by the bank's mortgage or the Schmaling mortgage was strictly opinion and conclusion testimony, and should not have been admitted by the court. 22 Cal. Jur. 485; Kline v. Van Sickle, 47 Nev. 139, 217 P. 585; Burns v. Loftus,32 Nev. 55, 104 P. 246; Kiesel v. Sun Insurance Co., 88 Fed. 243.
Instruction No. 8 was erroneous and unnecessary and took away from the jury the right to judge a question of fact which is strictly within their province. It defined the word "increase" and did not allow the jury the right to determine what cattle and what increase was included in the chattel mortgage from Johnston to Schmaling. 14 C.J., p. 729; Cumberland Pipe Line v. Stanbaugh,137 Ky. 526, 126 S.W. 106.
Instructions 9 and 12 are contrary to the law in advising the jury that the acceptance of a promissory note for the purchase price of property sold does not constitute payment and, further, that it is not applicable and has no bearing on the case. The two instructions are inconsistent. 14 R.C.L. p. 777.
This proceeding can be properly classified as a special proceeding, and under sec. 9048 N.C.L., the plaintiff in this action, being the prevailing party, is entitled to have judgment for costs under sec. 8924, par. 4, N.C.L. Hyman v. Kelly, 1 Nev. 180.
The evidence as a whole does not support the verdict. When the plaintiff used the witness Walker to show what Mr. Schmaling's testimony had been at the previous hearing, Mr. Johnston, as the other party to the transaction, was thereby rendered competent to testify as to the matters to which the evidence so produced related. Sec. 8966 N.C.L.; 40 Cyc. 2341.
While it is true that up to the time the witness Johnston answered the question: "Did they take all of the cattle which were included in the mortgage to the Churchill County Bank?" the chattel mortgages *Page 296 to the Churchill County Bank had not been received in evidence, the transaction of the witness with the Churchill County Bank and the bank's ownership or interest in certain of the cattle on the witness' ranch had been brought out in the testimony, and we fail to see how the plaintiff's case was prejudiced, particularly in view of the testimony which was later properly admitted concerning the bank's interest in the cattle in question.
Under the pleadings in this case any evidence which tended to disprove the allegations of the complaint that the cattle in question were mortgaged to the plaintiff was admissible and was competent and material evidence. 49 C.J. p. 799.
Certainly there was no opinion evidence involved in the testimony of Johnston that none of the cattle described in the mortgage from Raker to the bank could have been the offspring of cattle which Johnston sold to Raker. The witness answered from his absolute knowledge of the facts. Even if it were an expression of opinion, the witness was certainly qualified to testify concerning the matter.
We feel that it was incumbent upon the court to charge the jury as to the legal effect of the word "increase" in the Schmaling mortgages, as this was purely and simply a question of law. This was done in instruction No. 8.
The situation which instructions 9 and 12 were intended to cover was presented by undisputed evidence, and the legal principle laid down in instruction No. 9 is supported by sec. 6790 N.C.L. Likewise, instruction No. 12 is in accord with the practically unanimous rule stated in 30 Cyc. 1194.
The trial court, in the exercise of its sound discretion, under the authority of sec. 8927 N.C.L., denied the costs of the plaintiff sought to be taxed against defendant bank and awarded the bank costs against the plaintiff.
We submit that the verdict is wholly supported by the evidence. *Page 297
OPINION This action was commenced in the name of F.W. Schmaling. He having died, the administratrix of the estate of deceased was substituted as plaintiff. Appellant, who was plaintiff in the trial court, brought this suit against J.H. Johnston to foreclose a chattel mortgage upon certain cattle and their increase. After the suit was filed the Churchill County Bank, which had a chattel mortgage, executed by Johnston, upon some cattle upon his ranch, took possession of the cattle it claimed to have a mortgage upon. Thereafter the plaintiff amended her complaint so as to make said bank a party defendant, wherein it is alleged on information and belief that said bank claimed to have an interest in or lien upon a portion of the property alleged to have been mortgaged to the plaintiff; that said claim, interest, or lien, if any it has, is subject to the lien of plaintiff. Plaintiff demanded judgment for over $3,000 and costs, and for a foreclosure of its mortgage.
The defendant Johnston did not appear in the case, and in due time a judgment was entered against him as prayed.
The defendant bank appeared by answer and denied so much of the amended complaint as alleges that plaintiff had a prior mortgage and lien to that of the bank upon the cattle of which possession was taken by it.
The case was tried to a jury and a verdict was returned in favor of the bank. Thereafter the court made findings of facts and entered a decree in favor of the bank.
We have not undertaken to particularize the facts of the case, but simply to state enough to enable us to dispose of the errors assigned.
The plaintiff has appealed from the judgment only.
Plaintiff has assigned three errors: (1) That the court erred in overruling objections of the plaintiff to certain testimony; (2) that the court erred in the giving and refusing of instructions to the jury; and (3) *Page 298 that the court erred in disallowing plaintiff's cost bill and in allowing defendant's cost bill.
The first alleged error discussed by the plaintiff goes to the ruling of the court on an objection to plaintiff's exhibit E. The defendant Johnston was called as a witness on behalf of plaintiff and testified to a list of cattle which he made and handed Mr. Schmaling. On cross-examination by counsel for the bank, the witness was asked: "Q. Do you remember the circumstances under which that (exhibit E) was delivered?" The witness having answered the question in the affirmative, he was asked to state what they were.
1, 2. To this question it was objected that the inquiry was not cross-examination, and, further, Schmaling being dead, the other party to the transaction could not testify. The objections were overruled and the witness gave his testimony. No exception was taken to the ruling of the court. No exception having been taken, plaintiff is not entitled to have the point considered here. Wigmore on Ev. (2d ed.) sec. 20; 9 Ency. of Ev. 134. However, we will briefly dispose of it. Exhibit E was a list of certain cattle on Johnston's ranch made by him and concerning which testimony had been given by two other witnesses, one of them being Schmaling, who testified before his death. In State v. Boyle, 49 Nev. 386, 248 P. 48, we stated what we consider the correct rule as to cross-examination generally. The court certainly did not abuse its discretion in holding that the matter testified to was proper for cross-examination. Schmaling's testimony given before his death having been admitted, it was entirely proper for Johnston to give his testimony. 40 Cyc. 2341.
3. The next point made under the first assignment of error, and designated "b," pertains to a question asked witness Johnston on cross-examination relative to the mortgage to the bank. It is contended that the court erred in admitting the testimony for the reason that the testimony is not cross-examination, and, secondly, that there was no evidence in the record of a *Page 299 mortgage having been given to the bank by Johnston. We think the witness had testified to the existence of the mortgage himself, and, furthermore, no exception was taken to the ruling of the court. It is true that the mortgage was not in evidence at the time, but was later properly admitted in evidence, and if the court erred in its ruling it was without prejudice.
It is next contended that the court erred in admitting in evidence the chattel mortgage to the bank, defendant's exhibit 2, and in admitting in evidence defendant's exhibits 1 and 3; exhibit 1 being a chattel mortgage from Johnston to A.L. Baker, and exhibit 3 being a chattel mortgage from Eugene Raker and wife to the bank.
There was no exception to the ruling of the court admitting these mortgages; however, we will dispose of the contention made, which is that the bank did not plead the execution of the mortgages in question, or in any manner attempt to set up an affirmative defense.
4. We do not think the court erred in its ruling. The plaintiff alleged holding a lien prior to that of the bank. The bank denied that allegation. It did not have to plead an affirmative defense. All that was necessary for it to do was to disprove plaintiff's allegation. 21 Cal. Jur. sec. 97; Bliss on Code Pleading (3d ed.) sec. 327; 49 C.J. 799.
It is next contended that the court erred in admitting testimony of Johnston. No exception was taken to the ruling of the court. For an understanding of this line of testimony it is necessary to state that when Johnston started his dairy along about 1918, he purchased some cows from Churchill Creamery, Inc., upon which and their increase he later gave a mortgage to Schmaling. He purchased other cattle from others, upon which and their increase the bank claims a mortgage. The real question for the jury to decide was that of identifying the respective bunches of cattle, and their increase.
5. The line of inquiry to which the last objection goes is as to whether certain cattle were those covered by the *Page 300 bank's mortgage or the Schmaling mortgage. The court did not err in its ruling. If there were anyone who could testify to the "genealogy" of the cattle, if we may use that word, it was Johnston.
What we have said as to the last point applies to point "c."
There is no merit in the errors assigned to the giving of instructions 8, 9, 10, 11, and 12.
Instruction 8 defines "increase" and applies it to the offspring of the cattle mortgaged to Schmaling by Johnston.
Instruction 10 pertains to testimony to the effect that Schmaling gave Johnston permission to sell certain cattle covered by his mortgage, and the rights of purchasers thereunder. There was no error in this instruction.
Instruction 11 relates to rights of the respective parties to the cattle removed by the bank from the Johnston ranch. The law is clear and simple on this point, and the court did not err.
6. Instructions 9 and 12 are discussed together. They pertain to the proposition that a promissory note does not constitute payment, and to the rights of the respective parties. It is the well-settled general rule, as stated in the instructions, that a note, in the absence of an agreement to the contrary, does not constitute payment of the debt. 48 C.J. 610.
7, 8. No appeal having been taken from the order denying the motion for a new trial, the plaintiff is not entitled to have the evidence reviewed by us; however, we have considered the evidence, and though it is conflicting, there is substantial evidence in support of the judgment. This is enough to warrant us in affirming the judgment. Butzbach v. Siri, 53 Nev. 453,5 P.2d 533.
The last error assigned pertains to the ruling on the cost bills filed by the respective parties in the trial court. It is contended by plaintiff that the foreclosure suit is a special proceeding under section 9048 N.C.L., and hence he is entitled to his costs.
9, 10. We cannot agree with the contention that it is *Page 301 a special proceeding. It is an equitable action. Story on Bailments (8th ed.), sec. 310. We think the correct view is stated in Re Central Irr. Dist., 117 Cal. 382, 49 P. 354, 356, where it is said: "It may be said generally that any proceeding in a court which was not under the common-law and equity practice, either an action at law or a suit in chancery, is a special proceeding." Citing 1 Ency. Pl. and Prac., p. 112.
Perceiving no error, the judgment is affirmed.
ON PETITION FOR REHEARING March 15, 1933.