Waldron v. Waldron/Opinion of the Court
'To William H. Bradley, Esq., Clerk.

'Upon the presentation of the bill of exceptions to the judge for settlement, on February 21, 1891, counsel for plaintiff (defendant in error) moved that the judge do not sign the same, because the defendant (plaintiff in error) has waived her right thereto, since said defendant has not filed this bill of exceptions within the time prescribed by the judge at the time the appeal was prayed, and has failed to have said case docketed in the supreme court, as in and by a stipulation entered into on October 8, 1890, between the attorneys of the respective parties prescribed.

'Which motion was denied by the judge.

'To which ruling counsel for plaintiff then and there duly excepted.

'Date, Madison, Feb'y 21, 1891.'

The bill of exceptions in its caption recites:

'Be it remembered that on the trial of the above-entitled cause on the 21st, 22d, 23d, 24th, 27th, 28th, 29th, 30th, and 31st days of January, and the 1st, 3d, and 4th days of February, A. D. 1890, in the December term of said court, A. D. 1889, the said cause having been reached and come on for trial in its regular order on the trial calendar of said court, the following proceedings were had, viz.'

When it reaches the point where the evidence for plaintiff is recited, there appears the heading, 'Plaintiff's Evidence.' At the point where the opening evidence for the plaintiff ends, is the following entry: 'Which was all the evidence here offered on the part of the plaintiff on the trial of the cause.' This is immediately followed by the words, 'Defendant's Evidence. Thereupon, the defendant, to maintain the issues on his part in said cause, introduced the following evidence.' At the close of the evidence which follows the foregoing is the entry, 'Here counsel for defendant rested their case'; and following this: 'Rebuttal. And thereupon the plaintiff, further to maintain the issues on her part, introduced the following evidence in rebuttal.' At the conclusion of this evidence is the statement, 'Which was all the testimony offered on the trial of said cause.' The record was filed and docketed here February 28, 1891. In December, 1892, defendant in error moved to vacate the supersedeas because the surety on the bond had become insolvent. On December 12th it was ordered that a new bond be given within 30 days, and on the same day the new bond was filed.

Wm. H. Barnum, for plaintiff in error.

Chas. H. Aldrich, for defendant in error.

[Argument of Counsel from pages 371-377 intentionally omitted]

Mr. Justice WHITE, after stating the case, delivered the opinion of the court.

The motion to dismiss or affirm is without merit. The signing of the bill of exceptions after the expriation of the term at which the judgment was rendered was lawful, if done by consent of parties given during that term. Hunnicutt v. Peyton, 102 U.S. 333; Davis v. Patrick, 122 U.S. 138, 7 Sup. Ct. 1102; Bank v. Eldred, 143 U.S. 293, 12 Sup. Ct. 450.

The fact that the bill of exceptions was not handed to counsel for defendant on or before November 15, 1890, does not appear of record; and, if it did, it would be rendered immaterial by the action of the judge below in settling the bill.

If the bill was not delivered to counsel within the time fixed by the agreement, objection to the failure so to deliver it should have been urged when the bill was settled. And, if an objection then taken was overruled, the question of the correctness of such action should have been then reserved. The fact is that the only reservation made in the settlement of the bill is thus stated in the record: 'Counsel for plaintiff move that the judge do not sign the same, because the defendant has not filed this bill of exceptions within the time prescribed * * * at the time the appeal was prayed.' This, of course, was not sound, in view of the agreement whereby the time which had been at first fixed was extended. The only question reserved in this connection is accordingly, also, without merit. As to the contention that the appeal was docketed too late, the defendant in error is precluded from relying thereon by reason of his motion here for a new bond, long after the entry of the case on the docket of this court, which was made at the return term.

Whether the concluding words in the bill of exceptions, 'which was all the testimony offered on the trial of the cause,' would be treated as meaning all the evidence, if unexplained by the context of the bill, need not be considered, as all the recitals in the bill, from the caption to the end thereof, taken together, we think, conclusively show that the words, 'all the testimony,' were used as synonymous with 'all the evidence.' This conclusion is strengthened by the fact that the bill was settled contradictorily, and no reservation as to its incompleteness was made.

Coming, then, to consider the record, we find that the assignments of error here are of a threefold nature: (a) Those which relate to the conclusions of law reached by the court upon the merits of the controversy; (b) those which complain of perversion and misuse by counsel of evidence admitted, which it is alleged were so serious that they must have affected the minds of the jury to such an extent as to render the verdict and judgment necessarily reversible; and (c) those which rest upon the alleged rejection of legal and admission of illegal evidence.

We will first approach the investigation of the matters mentioned under the second heading, since, if the complaint of perversion and misuse of evidence is justified, it is not necessary to consider whether the rulings on the admissibility of testimony, or the final conclusions of law, upon the merits, were correct.

The complaint of the conduct of counsel in argument is substantially predicated upon the following analysis of the facts, which we find borne out by the record. In the opening statement of counsel for plaintiff, portions of the divorce proceedings were read to the jury; counsel saying, among other things: 'Here was an allegation that she has enticed him from his home, and the divorce was granted upon that ground, among others; that is, the decree finds that the facts in the complaint were proved, and that the divorce was granted upon that ground.' When the record of the divorce proceedings was offered by the plaintiff, objection was made thereto; and thereupon the court admitted it to prove the fact of the divorce alone, expressly limiting it to such purpose, and forbidding the reading or stating to the jury any of the averments found in the petition which in any way reflected upon the defendant. When the statute of Indiana was admitted, over objection, its introduction was allowed solely for the purpose of showing the law under which the divorce was granted. Having thus obtained the admission of the record and the statute for qualified and restricted purposes, plaintiff's counsel, in their closing argument to the jury, used these instruments of evidence for the general purposes of their case, repeated to the jury some of the averments in the petition which assailed the defendant's character, and put those allegations in juxtaposition with the statute of Indiana on the subject of divorce, and the testimony of certain witnesses, in order to produce the impression upon the minds of the jury that the decree of divorce had been granted on the ground of adultery between the defendant and Waldron. Indeed, the fact is that the counsel, after referring the jury to the evidence which was not in the record, stated to them, in effect, that it established the fact, or authorized the fair inference, that the decree of divorce had been rendered on the ground of adultery with Mrs. Alexander, and therefore conclusively established the right of the plaintiff to recover in the present case. It is unnecessary to say that all this is ground for reversal, unless its legal effect be in some way overcome. It is elementary that the admission of illegal evidence, over objection, necessitates reversal; and it is equally well established that the assertion by counsel, in argument, of facts, no evidence whereof is properly before the jury, in such a way as to seriously prejudice the opposing party, is, when duly excepted to, also ground therefor. Farman v. Lauman, 73 Ind. 568; Brow v. State, 103 Ind. 133, 2 N. E. 296; Bulloch v. Smith, 15 Ga. 395; Dickerson v. Burke, 25 Ga. 225; Loyd v. Railroad Co., 53 Mo. 514; Wightman v. Providence, 1 Cliff. 524, Fed. Cas. No. 17,630; Martin v. Orndorff, 22 Iowa, 505; Tucker v. Henniker, 41 N. H. 317; Jenkins v. Ore-Dressing Co., 65 N. C. 563; State v. Williams, Id. 505; Hoff v. Crafton, 79 N. C. 592; Yoe v. People, 49 Ill. 412; Saunders v. Baxter, 6 Heisk. 377.

The foregoing conclusions are not disputed by the defendant here, but she seeks to avoid their application as follows: First, by denying the right of the plaintiff in error to raise the question, upon the ground that no exception was reserved to the misuse by counsel of the evidence which is complained of; secondly, by asserting that the misuse did not take place, and that the assertion thereof in the bill of exceptions is erroneous and 'inadvertent'; thirdly, by admitting that use was made of the various items of evidence mentioned in argument, and contending that this was not a misuse, because the evidence was legally admissible for all the purposes of the cause, and was therefore properly so used; and, finally, by insisting that, even if use was made of alleged facts, evidence whereof had been expressly excluded, and which were not, therefore, before the jury, the wrong thus committed by counsel was cured by the final charge of the court, and therefore does not give rise to reversible error. Without pausing to consider the palpable inconsistency of these various contentions, we pass to the consideration of their correctness.

The claim that no exception was reserved to the misuse of testimony is founded on the proposition that as the objection made by defendant to the record and statute was to their admissibility in any form, or for any purpose, and as they were admissible to show the fact of divorce, the objection, being general, was not well taken. To state this argument is to answer it. It is clear that where evidence is admitted for one certain purpose, and that only, the mere fact that its admission was not objected to at the time does not aughorize the use of it for other purposes for which it was and could not have been legally introduced. The right of the defendant below to object to the perversion and misuse of the evidence depends upon whether objection was duly reserved thereto, and not upon whether exception was taken to the admissibility of the evidence which, it is asserted, was misused. That exception was here taken to the misuse of the evidence is plain. At the close of the case, when reference was made by one of the counsel for the plaintiff to the record and to the Indiana statute, and the other matters connected therewith, the following exception was reserved:

'Mr. McCoy, counsel for defendant, further objected to the statements of counsel for the plaintiff to the jury as to the laws of Indiana and the suit for divorce and the argument that it must have been granted upon the grounds alleged in the complaint in the divorce proceedings, which reflected upon the character of the defendant, Josephine P. Alexander, and then and there duly excepted to such statements.'

It is true that when, in the closing argument for the plaintiff, made by other counsel, similar language was used and objected to, no exception was reserved. This, however, is immaterial, as exception was reserved to the language first used, and this one exception, if well taken, must lead to reversal.

The contention that the prejudicial averments in the petition for divorce were not conveyed to the jury is thus argued: True, the bill of exceptions shows that they were so conveyed, but, because this statement is in direct conflict with the rulings of the court, therefore the statement in the bill of exceptions would seem to be an inadvertence. In other words, the argument is that the bill of exceptions must be disregarded on the theory that, if the facts stated in the bill be true, error results, and error is not to be presumed.

The remaining suggestions are quite as unsound as the specious one we have just considered. The divorce proceeding and statute, it is asserted, were admissible for all purposes, because there was evidence tending to show that the divorce was inspired by Waldron in connivance with the defendant below, and because such proceedings were part of the res gestae, etc. Whatever weight these propositions may intrinsically possess need not be considered, since the question we are examining is, not whether the divorce proceedings should have been admitted for the general purposes of the cause, but whether, having been rejected by the court for such purposes, it was competent for the plaintiff to use them in direct violation of the restriction placed upon their use. If error was committed in restricting the use of the evidence, the plaintiff's remedy was to except thereto, and not to disregard the ruling of the court, and use the evidence in violation of the conditions under which its admission was secured.

We come now to the last contention, which is this: That, conceding misuse was made of the record and other evidence, yet, as the misuse was corrected by the final charge of the court, therefore the error was cured. Undoubtedly, it is not only the right, but the duty, of a court to correct an error arising from the erroneous admission of evidence when the error is discovered; and, when such correction is made, it is equally clear that, as a general rule, the cause of reversal is thereby removed. State v. May, 4 Dev. 330; Goodnow v. Hill, 125 Mass. 589; Smith v. Whitman, 6 Allen, 562; Hawes v. Gustin, 2 Allen, 406; Dillin v. People, 8 Mich. 369; Specht v. Howard, 16 Wall. 564. There is an exception, however, to this general rule, by virtue of which the curative effect of the correction, in any particular instance, depends upon whether or not, considering the whole case and its particular circumstances, the error committed appears to have been of so serious a nature that it must have affected the minds of the jury despite the correction by the court. The rule and its exception were considered in Hopt v. Utah, 120 U.S. 430, 7 Sup. Ct. 614, where the foregoing authorities were cited, and the principle was thus stated, by Mr. Justice Field: 'But, independently of this consideration as to the admissibility of the evidence, if it was erroneously admitted its subsequent withdrawal from the case, with its accompanying instruction, cured the error. It is true that in some instances there may be such strong impression made upon the minds of the jury by illegal and improper testimony that its subsequent withdrawal will not remove the effect caused by its admission, and in that case the original objection may avail on appeal or writ of error, but such instances are exceptional.'

The case here, we think, comes within the exception. The charge made in the complaint was a very grave one, seriously affecting the character of the defendant below. The record which was admitted for a limited purpose had no tendency to establish her guilt of that charge, if used only for the object for which it was allowed to be introduced. This is also true of the Indiana statute, and of the other testimony relating to the divorce proceeding. The admission of the record and other testimony having been thus obtained, in the closing argument for plaintiff, all the restrictions imposed by the court were transgressed, and the evidence was used by counsel in order to accomplish the very purpose for which its use had been forbidden at the time of its admission.

Indeed, when the statements made by plaintiff's counsel in opening are considered, it seems clear that the failure to obtain the admission of the divorce proceedings in full left the case in such a condition that much of the subsequent testimony introduced, while it proved nothing intrinsically, was well adapted to fortify unlawful statements which might thereafter be made in reference to those proceedings. Thus, the case, in its entire aspect, was seemingly conducted in such a manner as to render the illegal use of evidence possible, and to cause the harmful consequences arising therefrom to permeate the whole record, and render the verdict erroneous. Our conviction in this regard is fortified by the fact that although the unauthorized use of the evidence occurred in the final argument of the counsel for plaintiff who first addressed the jury, and was then and there objected to and exception reserved, the same line of argument, in an aggravated form, was resorted to by the counsel who followed in closing the case. Indeed, the language of this counsel invited the jury to disregard the finding of the court, by looking beneath the facts which were lawfully in evidence.

As the fact of divorce was confessed by the pleadings, and besides was admitted by counsel for defendant, in open court, we are of opinion that the divorce record was inadmissible because of irrelevancy. We also consider that the statute of Indiana was not admissible for any purpose. We have not rested our decree upon the question of the admissibility of this evidence, because the mere illegal introduction of irrelevant evidence does not necessarily constitute reversible error; and hence we have been compelled to consider, not alone the admission of the irrelevant evidence, but also the illegal use which was made of it.

Judgment reversed, and cause remanded, with directions to set aside the verdict and grant a new trial. 

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