Burdick v. Haggart

Francis, J.

This case comes before the court on appeal from the district court in and for the Third judicial district, county of Cass, and involves the ownership of a span of horses levied upon and taken by the respondent, sheriff of said county of Cass, under and by virtue of a writ of attachment. The first error assigned by the appellant is the refusal to grant a new trial. The motion for new trial was based upon alleged misconduct of the counsel for respondent in making repeated and persistent offers of incompetent apd irrelevant testimony, containing insinuations and charges prejudicial to appellant, and in making slanderous statements concerning appellant, in his argument before the jury, of which there was no evidence, and in continuously urging the appellant’s alleged domestic infelicity and sexual relations as proof against his title to the team in question in the case. And it is claimed that appellant was thus denied a fair trial. The granting or refusing a new trial certainly under such circumstances, is largely a matter of discretion on the part of the trial judge to whom the application is made, and who, as an actual participant in and observer of the matters and events upon which the motion is based, is familiar with their form, substance, extent and situation; and his action in refusing a new trial will not be disturbed by this court, unless it clearly appears that by such refusal some acknowledged and vital legal principal has been ignored or violated, to the prejudice of the party claiming to be aggrieved, and manifest injustice has thereby resulted.

If the appellant, at the hearing in the district court, was prevented from having a fair trial, or if any of his rights at issue in the trial were prejudiced by the misconduct of respondent’s counsel, (either in repeated or persistent offers of incompetent and irrelevant testimony, containing insinuations and charges pi ejudicial to appellant, or in slanderous statements made in addressing the jury,) or if such misconduct prompted or influenced the jury to render a verdict not warranted by the evidence in the case, or a verdict against the appellant which they presumably would or could not reasonably have rendered had there been no such misconduct, then a new trial should have been granted. If we blot from the case all the alleged misconduct of respondent’s counsel, both as to testimony offered and statements made in argument, the verdict found by the jury would still be warranted by the evidence, in the exercise of sound reason, just discrimination, and fair judgment. If, then, in the absence of such alleged misconduct the jury would have been justified in rendering the verdict against the appellant found in this case, it cannot well be argued that the same verdict, arrived at in the presence of such alleged misconduct, should be set aside because of such misconduct. It is not evident that the said misconduct of respondent’s counsel either prevented the appellant from having a fair trial, or influenced the jury to find a verdict against him contrary to the weight of the real evidence submitted before them; neither is there any well founded or satisfactory inference that such was or might have been its effect, and there was no error in the refusal of the district judge to grant a new trial.

In announcing this conclusion we are not to be taken as, in any sense, excusing or indorsing any misconduct, either in act or utterance, of the counsel for respondent. In the trial of a cause it is always incumbent upon counsel, as it is upon the court, as the representatives of a noble profession, to exemplify those principles of true courtesy, professional honor, and dignified manliness which, in their frequent and prevalent exercise, by court and bar, for many generations, have given to the law and its administration continued stability and usefulness, and adorned the forum of justice with their spirit and grace. A court is, in a peculiar sense, the guardian of all litigants who enter its precincts for judgment, and, having regard to the varied differences in the temperament, education, experience, refinement, and. sensibility of practitioners, should exercise care and authority to prevent the license by long usage accorded to counsel, for the very purpose of the better defense of the rights of their clients, from being improperly used as an assaulting weapon to prejudice, impair, or destroy those of the opposite party, or as the means of a departure from the ancient, well-defined, and plainly recognized lines and regulations established and governing in the arena provided for combats in law. And the court should not wait to see the effect of such an assault or departure, but should promptly arrest any attempt to seriously disregard those rules of legal procedure and decorum at least as old as this license accorded to counsel.

The reasoning we have applied to the first assignment of error also covers the second, third, fourth, fifth, sixth, seventh, eighth, and ninth assignments of error, which relate to rulings of the court, during the trial, in admitting or excluding evidence. Error in excluding legal evidence, or in admitting illegal is not of itself sufficient ground for reversal. It must either actually appear, or the presumption must be strong, that the party seeking a reversal suffered or was injured or prejudiced by reason of the error complained of in some substantial interest or right involved in the issue raised or covered by the pleadings in the action or proceeding. The true test is, ignoring the alleged illegal evidence admitted, and admitting the alleged legal evidence excluded, would there still be good ground for the verdict as rendered, or could the jury have fairly arrived at not only a different verdict, but one in favor, in whole or in part, of the party asking reversal? If, upon ignoring the admitted evidence claimed to be illegal, and admitting the excluded evidence asserted to be legal, it appears that the jury could not have reasonably found the verdict complained of, nor any verdict in favor of the respondent, or that they should, or properly might, have found a verdict for the party assigning error, then the question of the legality or illegality of the evidence so admitted or excluded becomes material and should be determined. Applying this test to the present case, it is not necessary to determine which, if any, of the eight alleged errors just referred to are well assigned in law; for, even admitting them all to be well assigned, it is apparent that they would not be good ground for the setting aside of the verdict, or the reversal of the judgment entered upon it.

The tenth and last assignment of error includes certain portions of the charge of the court excepted to by the appellant. Upon reading the charge, and considering it in connection with the entire case, we are unable to find error in it for any of the reasons set forth in said tenth and last assignment of error.

The judgment of the district court should be affirmed.