McClelland v. Bullis , 34 Colo. 69 ( 1905 )

Mr. Justice Bailey

delivered the opinion of the court.

Plaintiffs in error rely upon four propositions for the reversal of the judgment in this action, namely:

“First. The court erred in disregarding’ the verdict of the jury and in making findings and entering a decree contrary thereto.

• ‘ ‘ Second. The court erred in immediately making finding’s upon all of the issues in the case directly contrary to the verdict of the jury and in entering a decree thereon without granting to plaintiffs in error a further opportunity to be heard as on a trial by the court.

“Third. The findings and decree of the court below were not only contrary to the verdict of the jury, but were not supported by the evidence and unconscionable.

“Fourth. The court erred in the admission and rejection of testimony.”

In our judgment there is nothing in these several allegations of error. We shall consider them in the order in which they are presented in counsel’s brief.

Taking the first two together, as to whether or not the court erred in disregarding the verdict and entering a decree contrary thereto, without granting plaintiffs in error a further opportunity to be heard as on a trial to the court: This action was purely equitable in its nature. It has none of the elements of an action at law. In such cases the verdict of the jury is merely advisory. The court may disregard it and decide the issue for itself on the evidence produced. — Porter v. Grady, 21 Colo. 74; Peck v. Farnam, 24 Colo. 141; Wilson v. Ward, 26 Colo. 39; Buckers Irr. Co. v. Farmers’ Ditch Co., 31 Colo. 62; Abbott v. Monti, 3 Colo. 562; McGan v. O’Neil, 5 Colo. 58; Hall v. Linn, 8 Colo. 264; Kirtley v. Mining Co., 8 Colo. 279; Tabor v. Sullivan, 12 Colo. 136.

Tlie concurring opinion of Mr. Justice Elliot, in the last mentioned case is cited by plaintiffs in error for tlie purpose of demonstrating that defendant in error' had waived his right to trial by the court and was bound by the verdict of the jury. Justice Elliot said:

"Where parties allow, without objection, a jury to be sworn generally to try an action containing issues triable by the court, they should be held to have waived a trial by the court, especially as it is always in the power of the court to order such issues to be tried by a jury. Verdicts-in such cases may not have the same binding force as verdicts responsive to strictly legal issues.” The intimation clearly being that the verdict is largely advisory, and may be set aside. At page 141 of the opinion by the court, it is said:

"Such findings are, under the present practice, not absolutely -binding upon tlie court. They were in the case at bar merely advisory to the chancellor below, and this court is free to exercise great latitude in considering evidence received in support of the equitable issues involved, even though it may have been submitted to the jury. ’ ’

Much of the argument of plaintiffs in error is devoted to the proposition that defendant in error (plaintiff below) having elected to treat the action as one at law, instead of one at equity, cannot now be heard to assert that it was equitable instead of legal, and that he is absolutely bound by the verdict of the jury. There is nothing in the record from which it appears that defendant in error at any time treated the action as one at law, except the fact that a jury was called to try the issues, without objection upon his part, and the fact that the jury was sworn generally to try the issues and render a general verdict. An objection to the calling of the jury might not have been availing, because it is within the power of the court to call a jury to try any issue of fact, either legal or equitable, and to submit to such jury all questions of fact arising from the case.

The facts stated in the petition and the relief asked constitute a case in equity, and it is well settled that in such cases the verdict is merely advisory, and may be disregarded by the court. — Coglan v. Beard, 67 Cal. 303; Wallace v. Maples, 79 Cal. 433; Adicks v. Lowry, 12 S. C. 97.

While we have examined with great care the authorities presented by plaintiffs in error, we shall not attempt to review all of them, because it is well settled in this state that the verdicts of juries in such cases are purely advisory. Suffice it to say that practically all of the cases cited by plaintiffs in error recognize the right of the court to set aside the verdict. For instance, Ross v. New England Ins. Co., 120 Mass. 117, recognizes the right of the court to set aside the verdict. So in Franklin v. Greene, 2 Allen 519.

In Ex parte Morgan, 2 Ch. D. 72, it is said by James, L. J.: “I take the rule in chancery and bankruptcy with respect to verdicts of juries to have been substantially the same as in the common law courts, namely, that the finding must be considered as res judicata, conclusive between the parties, unless and until it is set aside. But in chancery and in bankruptcy the court has also substantially the same powers as the courts of common law had to pronounce a judgment non obstante veredicto. If, assuming the finding of the jury to be correct, that the fact or facts is or are as found by them, there are other facts or other considerations which enable the court to pass over that finding and to pronounce a decree or make an order adverse to the party who- has obtained the verdict, tlie court is entitled to pronounce such decree or make such order.”

In Setzer v. Beale, 19 W. Va. 274, it is said: “After a verdict is rendered by a jury on an issue out of chancery, if, upon the proofs, as they stood at the- hearing, an issue ought not to have been ordered, it is the duty of the chancellor, notwithstanding the verdict, to set aside the order directing the issue, and enter a decree on the merits as disclosed by the proofs on the hearing when the issue was ordered."

In Ivy v. Clawson, 14 S. C. 272, the first exception of appellant was “that the verdict of the jury should have been regarded as conclusive of the issue referred.” The appellate court said: “The judge sitting as chancellor is not required to- regard the finding of the jury as conclusive of the fact submitted any more than he would the report of a referee, but, on the contraiy, is bound to consider all the.evidence in the whole case, including the finding and the evidence to support it, and pronounce his judgment accordingly."

Citing many authorities, among which was C. C. & A. R. R. Co. v. Earle, 12 S. C. 53, wherein the court says: "The parties in what is commonly called an equity case have a right to the opinion of the circuit judge, notwithstanding his right to refer issues of fact to- a jury for the purpose of enlightening his conscience, but the verdict of the jury is not to be accepted as the conclusion which is to govern and control the case, and through the medium of which the judgment is to- be pronounced in favor of one side or the other.”

The case of Stahl v. Gotzenberger, 45 Wis. 123, which is likewise cited by plaintiffs in error, in many respects is similar to the one now before the court. A jury was drawn without question by either of the parties or by the judge, and after being sworn to try the issues generally, and hearing the evidence, found a verdict directing judgment for plaintiffs. The clerk entered judgment on the verdict. There is nothing to show that the court passed on the facts.

The appellate court said: “When the jury have given their verdict, the case is then taken up by the court, and if the court is not satisfied with the- findings of the jury he may, either upon the application of the party, or of his own mind, set aside such verdict and submit such issues to another jury, or, if he is satisfied that no aid will be obtained by such further submission, he may proceed to decide the issues without any further intervention of the jury. After a verdict has been rendered upon the issues submitted by the jury, the court hears the testimony on the other issues of the case, if any, and then upon all the testimony in the case, including that given upon the trial of the issues by the jury, disposes of the whole case.”

That is exactly what has been done here. The testimony upon the entire case was presented before the jury. Neither party offered further proof, and the court very properly passed upon the case as made. If defendants below desired to introduce further testimony and treat the matter as a trial by the court, it was their duty to make such request.

In McDonald v. Thompson, 16 Colo. 13, the court rendered judgment non obstante veredicto without taking additional testimony.

Vickers v. Buck Stove and Range Co., 68 Pac. 1081, is cited by plaintiffs in error as an authority for the proposition that where the court disregards the verdict of the jury it cannot thereafter arbitrarily determine the case itself without giving the parties a hearing of some kind to some extent before it as a court. , The court in that case said: '“It is not said that the court must permit a retrial of the case, but it must allow the case to be presented anew, so far as to give it the substantial character and effect of a trial to the court. The record shows that ‘defendants requested permission to present said case to the court as upon a trial to the court, which the court refused. ’ * * * As before said, the court, if dissatisfied with the jury’s findings, should not be required to try the case de novo, but in all particulars in which a trial to the court differs from a trial to the jury the parties are entitled to a hearing before the court.”

In the case at bar, no request was made to present the matter anew to the court. There is nothing to show that the defendants therein had any additional testimony to. offer. If they did not have it, or having it did not ask permission to present it, of course they were not in a position to complain.

The plaintiffs in error may not sit by and fail, refuse or neglect to exercise a right to introduce testimony, and then complain of the action of the court in not receiving that which was not tendered.

To procure a reversal, it must be shown that the court below committed error, and that the plaintiffs in error were not responsible for it. — Perdew v. Creditors of Coffin’s Estate, 11 Colo. App. 157; Martin v. Force, 3 Colo. 199; Denver v. Stein, 25 Colo. 125; Tucker v. Parks, 7 Colo. 62.

In the order setting aside the verdict it is said: “Inasmuch as the jury heretofore called and empaneled to advise the court upon certain facts submitted to them have been erroneously instructed by the court, and that the court had failed to instruct said 'jury upon matters which they should have been fully instructed did find an erroneous verdict, and such verdict was by said jury found, it is hereby ordered that the same be disregarded.”

Plaintiffs in error failed to bring before us the . instructions given by the court to the jury, so that we cannot determine whether or not they were erroneous or insufficient; and they do not now contend that the trial court labored under a mistake when it found that it had erroneously and insufficiently instructed the jury. We therefore conclude that the jury were erroneously and insufficiently instructed.

As to the third proposition of plaintiffs in error, viz., that the findings and decree by the court below were not only contrary to the verdict of the jury, but were unsupported by the evidence and unconscionable, it will be observed that, under the pleadings, defendants admit that the several checks, deeds, notes and mortgages were made without consideration— that is, defendants McClelland and Mary Morris only deny the second paragraph of the complaint, leaving the remainder of the petition unanswered.

“The answer of the defendant shall contain: First, a general or specific denial of,.each material allegation in the complaint intended to be controverted by the defendant.” — Sec. 56, Code of Civil Procedure.

“An answer must be responsive to the bill to properly raise a triable issue.” — San Juan etc. Co. v. Finch, 6 Colo. 214.

Denials should be so specific as to clearly and unequivocally indicate what the pleader intends to deny. — D. & N. O. Construction Co. v. Stout, 8 Colo, 61.

The other defendant in the affidavit filed by her in support of her motion to strike from the files the joint answer of herself and Mary Morris says: “That in said answer she is represented as alleging and claiming that the plaintiff in this cause seriously and permanently injured her by the commission of certain wrongs against her and said defendant Mary Morris, and that, in consideration of and to repair the said injuries and wrongs, said plaintiff made a certain agreement with, her; that the foregoing allegations of said pretended joint answer and other allegations therein contained are untrue; that she has not been so injured; that- said wrongs have not been committed, and that no such agreement as that alleged in said pretended joint answer to have been entered into by said plaintiff was ever made."

She then filed her separate, answer, wherein she alleges that she never received the note alleged in the complaint to have been made payable to her, and there was no consideration for the. execution of the note or mortgage; that her codefendants were not authorized by her to demand or receive any such note or mortgage; and that all things done by her co-defendants in so far a.s the same purported to- have been done in her behalf, on her account or for her benefit were done without any request or license on her part.

It appears from the record that she was subpoenaed as a witness on behalf of plaintiffs in error. She was not called by them and we must therefore consider that her affidavit and answer were true and the facts were substantially as stated therein and in so much of the complaint as is admitted by defendants, because of their failure to deny the same.

If defendant in error injured her as alleged in the several writings, he and she and each of them must have had knowledge of the fact; yet they both deny it upon their oaths, and no-person is heard to aver to the contrary. If there was no injury, no recompense could be required^ It therefore clearly appears that there was no consideration for the execution of the several instruments. The only matter which was triable was that of duress. Plaintiffs in error insist that the duress was not proven because, forsooth, defendant in error is the only witness who testifies to the making' of threats and as to the imprisonment, while, upon the other hand, McClelland and the two Morrises testified that there was no imprisonment and no. threats. There being three witnesses testifying in the negative and only one in the affirmative, it is said the three must he believed. If the rule is as contended for by plaintiffs in error, three conspirators might at any time enter the office or domicile of an innocent man and compel him by force, threats, intimidation or the like to acknowledge that he was guilty of the most heinous offenses, or part with the most valuable property and then when he, as soon as he was relieved from the duress or intimidation, repudiates the entire transaction and brings suit to recover that which he parted with, they, with one voice, can proclaim that no such thing' occurred. They numbering’ three and he hut one, and a majority of witnesses creating the weight of evidence, the innocent would he made to suffer and the wrong-doer obtain profit thereby, notwithstanding the fact that the cause of the one was just.and the cause of the three unjust. This, however, is not the law.

“The weight of the evidence does not wholly consist of its volume nor in the number of witnesses sworn.” — Green, Administratrix, v. Taney, 7 Colo. 278.

Yet, the testimony of defendant in error is somewhat supported by the testimony of his stenographer, who was in the adjoining room and overheard a portion of the conversation. He is further corroborated by the circumstances of the entire transaction. The defendant in error was of mature years; he had a wife and a family whom he was hound to protect. He had a lucrative practice as a lawyer, and had accumulated some property. He was held in high repute among his neighbors and friends. He apparently had no knowledge of the contemplated visit of McClelland, the two Morrises and their friend and advisor, Mr. Sabin. Yet, according to their testimony, he willingly, freely, voluntarily and graciously sacrificed his domestic happiness and his reputation as a decent citizen, and also made, executed and delivered unto them a deed for a fourth interest in.two mining claims; a check for one thousand dollars to E. M. Sabin; a check for five hundred dollars to defendant McClelland; a check for two hundred dollars to Dr. Bagot; a check for two hundred dollars to Dr. Atcheson; a note for two thousand dollars to Mary Morris, secured upon his law library and office furniture; a note for twenty-one hundred dollars to............, with mortgage securing the payment of same; a receipt to McClelland for fifty dollars, which amount was then owing by McClelland to defendant in error; thus sacrificing the result of the labor of a lifetime, and all of this in reparation for an alleged injury to............ which she says, and he says, was never perpetrated, which could not have been accomplished without their knowledge, and which plaintiffs in error in their pleadings in this action do not aver was ever committed. Add to this the further facts which appear from the record; that the party who was injured, if any, received no portion of the money and that the note made payable to her was never delivered to her but remained in the hands of McClelland; that she received none of the benefits of the transaction, and that these people were acting without authority or license from her, and we can scarcely say that the trial court erred in finding positively and affirmatively that the several instruments were executed without consideration and that they were executed under duress. The court saw the witnesses, heard the testimony and was as fully advised as to the cricumstances surrounding the occurrence as a judge presiding at the trial could be. The decree being supported by legal and competent evidence will not be disturbed.

The other objection made by plaintiffs in error is that the district court erred in the rejection and admission of testimony.

Plaintiffs in error asked defendant in error the following question, upon cross-examination:

“Did you at any time tell Mr. Regennitter that you had ruined............, and if so, when did you tell him 11 ”

This was objected to and the objection sustained. This question was immaterial and improper. It was not alleged in any of the pleadings that the instruments in question were executed by defendant in error because of his circulating false reports in relation to............and, as we have seen, it was admitted in the pleadings that there was no truth in the charges.

The other questions were propounded by defendant in error to certain witnesses for the purpose of showing the appearance of the defendant in error shortly after the alleged imprisonment and duress. It appears from the testimony that immediately after the execution of these several instruments he was confined to his bed because of a shock to his nervous system, and any testimony which would tend to- show the mental condition of the party immediately after the transaction was material.

Perceiving no error in the record, the judgment-will be affirmed.

Affirmed.

Chief Justice Gabbert and Mr. Justice Goddard concur.