WILLIAM GOULD and WESLEY S. DUNN, Plain-tiffs in Error, vs. AMANDA GOULD, Defendant in Error.
[January Term, A. D. 1903.]
Appeal from the Court of Quarter Sessions and Common Pleas, Maryland County.
Damages for Trespass.
Arrest of judgment—Party entitled to submit motion first — written evidence.
1. The party filing the last pleading is entitled to motion the court first on any legal defect in the pleadings of his adversary.
2. Where in a civil action a party offered in evidence the record of a criminal court it was held that it was not admissible; but where in an action of damages for trespass the defendant offered in evidence a deed to prove that the property which was the subject of the trespass did not belong to plaintiff, it was held to be error in the judge below, in refusing to admit the document as evidence.
The case above named is one of great complexity, and owing to its peculiar proceedings is difficult to analyse. It was originally entered in the Court of Quarter Sessions and Common Pleas, Grand Bassa County, at the December term, A. D. 19oo, but the venue was changed by W. S. Dunn, now plaintiff in error, to the Court of Quarter Sessions and Common Pleas, Maryland County. In that court it was tried at its February term, A. D. 1901. But the plaintiff, now defendant in error, being dissatisfied with the verdict of the jury, which she considered to be manifestly against the law and evidence in the case, motioned the court below for a new trial, which the said court granted, to be held at the same session of the court. The case was tried de novo, and a second jury gave verdict in favor of the plaintiff, now defendant in error, to which defendants objected and motioned the court for arrest of judgment, which the court would not sustain, assigning as a reason that the ground of the motion was not what the law requires for the arrest of judgment, and proceeded to render final judgment. The defendants, now plaintiffs in error, believing that injustice had been done to them, and being displeased with the verdict of the jury, and considering the various rulings and the judgment of the court as erroneous, brought the case up to this court on an assignment of errors, that they may be corrected (if any there are), and substantial justice given.
The assignment of errors consists of ten counts, but the court will only pass on those which are sufficient to determine the case, they being more pertinent. The first assignment is as follows: “Because on the fourteenth day of May, A. D. 1901, when the case was called up, the defendants, now plaintiffs in error, gave notice to the court that they had a motion to offer to dismiss plaintiff’s action, but the court ruled that the plaintiff had a right to offer a motion first.”
On this point this court says the judge below erred in his ruling, and is of the opinion that the party who pleads last has the right, legally, to motion the court to dismiss. The rule of court granting to plaintiff the right to begin and close all pleadings, does not preclude the defendants from petitioning the court to dismiss a cause for manifest error in the pleading, provided the defendant is in a position to move first, for it is evident that the plaintiff will not motion for the dismissal of his own cause. In the case under review the defendants, now plaintiffs in error, gave notice to the court that they had a motion to dismiss the action of plaintiff (now defendant in error), which this court says the court below should have heard, and, if based on law, should have acted accordingly. (I Bouv. Law Dict. under the head of “Motions.”) The judge below, in failing to hear and entertain the motion of defendants, erred.
Passing over the second count in the assignment of errors, this court will quote and consider the third assignment, as follows:-
“And also, because, on the seventeenth day of May aforesaid, the plaintiff at the trial introduced as written evidence, in her own favor, the records of the Court of Quarter Sessions and Common Pleas, of Grand Bassa County, in the criminal proceedings instituted against the defendants for the same offence in which she was a witness, to wit: Republic of Liberia, plaintiff, against William Gould and Wesley S. Dunn, defendants, charged with assault and battery with intent to kill. The defendants objected, but the court overruled the objection and admitted the record, to which ruling the defendants excepted.”
It is the opinion of this court that the judge below erred in admitting the said record as evidence, for the reason that the said record as evidence in the said criminal case could not be used to establish facts in a civil suit; for although the said Dunn and Gould were found guilty of the alleged charge, still the evidence would not be sufficient to establish facts in a case of trespass. (Lib. Stat. Chap. i t. secs. 19 and 21; I Greenleaf on Evidence, secs. 537 and 538; II Greenleaf, sec. 9a)
And again, the court could not admit the said record as evidence in this case because it would stultify the court in rendering judgment in the said case for assault and battery with intent to kill, as said case is now before this court for review, defendants having appealed from the verdict, rulings and decision of the court below; and should this court admit the said record as evidence in this case, as being conclusive and sufficient to establish the facts, it would be practically deciding the said case of assault and battery, appealed, before it is reviewed.
“Also because on the seventeenth day of May aforesaid, at the trial, the defendants introduced as written evidence in their favor the deed of Samuel Gould and the record of the Court of Quarter Sessions of Grand Bassa County, showing that the property was not Amanda Gould’s, and that she had no right thereto; but the court refused to admit said written evidence, to which the defendants excepted.”
The Statutes of Liberia declare that “deeds and other writings shall be evidence against all parties to them, and shall also be evidence of the transfer of all titles or rights transferable by them, against all mankind.” (Lib. Stat. Chap. 11, secs. r and 25.)
Now, then, this court says that the judge below erred in not admitting the said written evidence; for defendants (now plaintiffs in error) were carried into court by plaintiff (now defendant in error) upon a charge of damages for trespass, and it was necessary for the defendants (now plaintiffs in error) to prove that they committed no trespass, as the property was not that of plaintiff (now defendant in error).
From inspecting the record in the case this court discovers no evidence, written or oral, sufficient to establish the claim of Amanda Gould, or to justify the verdict and judgment of the jury and court below against William Gould and Wesley S. Dunn. The foregoing points in the assignment of errors, quoted and traversed, together with non-conclusive evidence in the case, are sufficient grounds for the toppling and overthrow of the case.
This court therefore adjudges that the judgment of the court below be reversed, and that plaintiffs in error recover all legal costs of this action. The clerk will issue a mandate to the judge of the court of Quarter Sessions and Common Pleas of Maryland County to the effect of this judgment.