Hollenbeck v. Stanberry , 38 Iowa 325 ( 1874 )

Cole, J.

— I. At the trial the plaintiff introduced in evidence the receipt for collection, executed by defendants to the plaintiff, which contained also a copy of the note in question, and rested.

The defendants then admitted that they received the goods, etc., in payment, and gave up the note to Yalentine the maker. One of defendants then testified that “shortly after the receipt of the goods * * * Yalentine was adjudged a bankrupt; that defendants were sued in the United States District Court, and a judgment was rendered against them for one hundred and fifty dollars debt, and forty-two dollars and eighty-five cents costs; the suit being for the recovery of the amount of goods given by said Yalentine to secure defendants in payment of said note.” To all this the plaintiff objected because “the record of the proceedings of the court are the best evidence, and cannot use parol evidence to ptove a- record.” The objection was sustained, and the evidence excluded.

Much of the testimony thus excluded was - incompetent for the reason stated in the objection; but it was not all so incompetent. The defendants might properly identify themselves as being the defendants in the action in the United States Court, and it was also competent for them to prove, by parol, that the goods for which the recovery was had in that court were the identical goods they had received from Yalentine, upon the note they held for collection. It was error therefore to exclude all that testimony.

II. The defendants then asked leave to introduce the receipt of George D. Wood, assignee of the estate of Yalentine, the bankrupt, given to defendants upon the payment of the judgment for one hundred and fifty dollars, recovered for the goods, etc.; and also offered to introduce the copy of the original notice or summons served upon them by the United States Marshal, duly signed by the clerk of the United States District Court, requiring said defendants to answer at said court to the said claim of George D. Wood, assignee. Plaintiff objected to each of these, because “ the same are not the best evidence; ” and the court sustained the objection.

evidence: payment of Judgment. Neither item of evidence, so offered, was vulnerable to the objection made. The payment of the judgment was a fact which might properly be proved by parol evidence, , & • 4. 1, . . .. by a separate written receipt, or by a receipt written upon the records of the court, and either would be equally competent. The copy of the original notice or summons served and certified as such by the proper officer, upon the defendant in an action, is as competent and as original evidence as is that whereon the officer makes his return. It is required by law, and its genuineness and correctness constitute the basis of the jurisdiction of the court over the person of the party served.

The fact that these two items of evidence did not constitute an entire or complete defense, cannot now avail the plaintiff. He did not object to the evidence on that ground, nor urge that reason helow. And further than this, a party has the right to introduce his testimony, item by item, and he need not offer it all at once; and when competent evidence is rejected he may rely upon such error. Besides, there is nothing in the abstract in this case to show that we have all the evidence before us. There is simply “ an agreed statement of facts in evidence” showing the points we have considered. To affirm the judgment, notwithstanding these errors, on the ground that the evidence before us does not show a complete defense, would be to disregard all precedent, and probably effectuate a grievous wrong.

III. The commencement of the suit was a sufficient demand, Johnson v. Semple, 31 Iowa, 52. There is nothing to show that interest was allowed before that time. If the defendants had no authority to receive the goods in payment, they would then only be liable for the value of the note, which would not exceed the amount that could be collected upon it.

Reversed.