Devencenzi v. Cassinelli

By the Court,

Counsel for appellant have filed a lengthy petition for rehearing in this cause (see opinion, page 222 of this volume) setting forth three grounds why, in the opinion of counsel, a rehearing should be granted, to wit: " (1) The court has admitted the premises, and reached a wrong conclusion. (2) The court has overlooked the strongest point urged by appellant. (3) The court denied that certain evidence. was introduced to impeach the witness, in the face of the fact that the lower court stated that it was introduced for that purpose, and admitted for that purpose, and acted upon by the jury.” The labor evidently expended by counsel in the preparation of the petitiop, the manifest sincerity of belief in the correctness of the position taken, and the zeal with which it is presented, warrant a statement of the reasons why this court deems that the petition should be denied.

1. The first point urged is in reference to the evidence concerning the receipt for $500. No points are raised in the *278petition, however, that were not very carefully considered before arriving at a decision with reference to this receipt. Much deliberation was given to this question and a further consideration of the point does not shake our belief in the correctness of the conclusion heretofore reached.

2. It was urged in the briefs of counsel for appellant, and in the oral argument of the ease, and again in the petition, that the trial court erred in admitting certain evidence upon cross-examination of the defendant, which is claimed to be in relation to facts not within the pleadings, and from which the jury could draw the conclusion that the appellant owed the respondent a large amount of money beside that sued for in the action, and hence that the admission of such testimony was prejudicial to the appellant, in that the jury might be satisfied that the $500 covered by the receipt had in fact been paid to respondent, and yet allow the respondent the full amount sued for, because of the showing of this other indebtedness. It is now contended that this, "the strongest point urged'by appellant,” was overlooked by the court in its opinion. The point was not overlooked by the court, but was not touched upon in the opinion for the reason that, in the judgment of the court, there was no assignment of error that warranted its consideration. In the opinion heretofore rendered by this court, every assignment of error contained in the statement on appeal was passed upon. This court has repeatedly held that it will consider only such alleged errors as are embraced in the assignments of error. The evidence complained of is the same as that contended to have been erroneously admitted for the purpose of impeaching the witness, and the only objection made to it that has been brought before this court for consideration under the assignments of error was in reference to this alleged attempt to impeach the witness. Even if the admission of the testimony complained of was erroneous, we hardly see how the jury could have been misled by it, under proper instructions from the court. The instructions given are not made a part of the transcript on appeal, but it contains a statement that "the jury were duly instructed by the court.”

3. During the cross-examination of the defendant, objee*279tion being made by defendant’s attorney to the line of interrogation, the court, in ruling upon the objection, stated: "It is for the purpose of impeaching the witness, if I understand Judge Mack, that they must have had a settlement. If I remember, he testified in his examination in chief that they • never had a settlement.” Counsel for plaintiff at no time :; claimed such to be the purpose of the cross-examination;', although, from the questions asked the witness thus far, the. court might have drawn the conclusion that such was the purpose of the examination of the witness. When, however, counsel moved to strike out the evidence elicited, upon the grounds which are set out in full in the opinion heretofore rendered, the court, in denying the motion, put it upon the ground that the testimony of the witness complained of "is touching his qualifications as a bookkeeper.” From this and other statements of the trial judge made at the time, it would appear that the trial court, from further examination of the witness, considered that its purpose was not that of impeachment, or at least that it had not such tendency.

For the reasons given, a rehearing is denied.