Wheeler v. Ruckman

The counsel for the defendant moved, *354on the trial of the issues of fact in this action, to dismiss the complaint, upon the ground that the former action in this court, mentioned in the answer, was a bar to this action, which the court refused, and an exception was taken by him to such refusal. He also requested the presiding judge to charge the jury that the plaintiff bought this note for prosecution, being a practicing attorney, and therefore could not recover upon it, which the judge refused and the counsel excepted. The presiding judge charged the jury that neither the judgment in the former action between the same parties, in this court, nor that in the action in the marine court, brought in the name of Russell, were bars to this action; to which instructions the defendant’s counsel excepted. These are all the exceptions in the case upon the merits. The judgment in the former action in this court was no bar, because the complaint in it was merely dismissed, and the issues were never tried or a verdict of the jury given. (Dexter agt. Clarke, 22 How. 389; Seaman agt. Ward, 1 Hilt. 52; People agt. Vilas, 3 Abb. N. S. 252; Coit agt. Beard, 33 Barb. 357; Coit agt. Bland, 22 How. 2; S. C. 12 Abb. 462.) The judgment in the marine court was also no bar, because it was a dismissal of the complaint for want of parties, and not on the merits.

The reversal seems to have had no other effect than to give the plaintiff in it costs, as it was never tried again, (Anon. 9 Wend. 503.) This judgment was also not set up in the answer as any defense; nor was any such defense set up therein as to the purchase by the plaintiff" of such note for prosecution, although it had been in the former action in this court; so that no such defense was admissible on the trial! Besides, there was not enough evidence in the- case to sustain a charge of a purchase for such purpose, if it had been set up as a defense.

The written agreement of the 3d of February, 1854, did not constitute a purchase of the note in question ; the parol agreement of the 4th made it only partly one, and the plain*355tiff was already employed to sue upon it. The assignment in December, 1854, was executed after the termination of the action in the marine court, and its objects and occasion fully explained.

The following questions were excluded on the trial; to whose exclusion the counsel for the defendant excepted:

1st. “Did you draw the complaint in this easel”

This was put to the plaintiff, in reference to the action in the marine court, brought in the name of Russell.

2d. “Did you not also on that trial claim that Robert P, Russell was the owner of the note?”

This also referred to the trial in the marine court.

3d. “Had you ever commenced any other suit for Robert P. Russell, prior to this note being left with you?”

Hone of the information sought by these questions was material. In fact, the first was answered by the plaintiff, testifying subsequently, that his brother drew the complaint inquired about, and he did not. In reference to the second, he stated that he employed counsel on such trial. Hor do I see that his claiming on the trial that Russoll was the owner of the note, was more important than his acting as attorney in the suit in which he claimed it. That question was disposed of by this court when this case was before it formerly. (1 Robt. R. 408.) The fact of commencing or not commencing some other suit for Russell, before the note was left by him with the plaintiff, was wholly irrelevant.

The following question was put to the plaintiff, and its admission excepted to:

Q. “Did you ever at any time, in substance, make any claim to this note, other than that you became the owner on the 4th of February, 1854?”

But the exception became useless, because it was never answered, the plaintiff merely saying, in reply to which no objection was made, that he didn’t “think he evér testified to that;” and so it appears by the case.

The defendant’s counsel offered a copy of thé case, pre*356pared on the appeal from the judgment on a former trial of this action, claimed to be in the handwriting of the plaintiff, which the case before us states, showed an entire different statement by him from that made on the present trial. The fact that the case was in his handwriting can make no difference. as to the admissibility of the evidence. The case itself is no evidence of what took place on the trial. (Neilson agt. Columbian Ins. Co. 1 Johns. R. 301.)

These are all the exceptions insisted on upon the argument. The jury passed upon the question of the transfer to the plaintiff on the 3d or 4th of February, 1854 (prior to the attachment in the Drury case), because it was expressly submitted to' them, and they were directed to find for the defendant, if the note was not then transferredj and this fully defeated any claim under the Drury attachment.

There being no error in the charge or refusal, to charge, or the admission or exclusion of ■ testimony, the judgment should be affirmed, with costs.

I concur.—S. Jones.