
    (Eighth Circuit—Cuyahoga Co., O., Circ’t Court
    January Term, 1901.)
    Before Caldwell, Hale and Marvin, JJ.
    GEORGE SIMON and Others v. M. P. MOONEY, Assignee,
    
      Parties — Making party defendant instead of substituting—
    (1.) When during the pendency of a suit in the state court the defendant was adjudged a bankrupt by the federal court and a trustee appointed, and such trustee was ordered by the referee in bankruptcy to be substituted for the original defendant in the state court, which the state court refused to do, but ordered that the trustee be made a party defendant, the trustee filing his answer as such party ¡defendant and the case proceeding to trial, neither the original defendant or the trustee are prejudiced thereby, as whatever defense the trustee could have made if he had been substituted for the defendant he could make as party defendant.
    
      
      Withdrawal of party claim not prejudicial—
    >(2.) In an action by an assignee for creditors to recover money, and the proceeds of notes and checks, received by the defendant and belonging to the plaintiff’s assignor and for merchandise of the • assignor converted by defendant to his own use, an order permitting plaintiff, on his motion, to withdraw his claim for certain of ■the notes “without prejudice to pláintiff,” could not prejudice ■defendant, and is therefore not reversible error .
    
      Examining adverse party — Effect of Sec. 5243, R. S—
    (3.) The effect of sec. 5243, R. S., permitting a party to an action to be examined as if under cross-examination by the adverse party, is to authorize a party to call the adverse party and cross examine him,'and to limit the right of the counsel for the party thus called, in examining him, to what it would be if he had been cross examined in the ordinary way.
    Same—
    ÍS-) A verdict will not be disturbed as not being for the right amount, although there may be doubt in the court’s mind about it, unless it is clearly contrary to the evidence or unsupported by sufficient ■evidence.
    Error to the Court of Common Pleas of Cuyahoga county.
   Marvin, J.

The plaintiff below was M. P. Mooney,,as assignee in trust for the benefit of the creditors of S. A. Jacobs. He brought his suit against George Simon. During the pendency of the suit, Simon was adjudged a bankrupt by the district court of the United States for the northern district of Ohio, eastern ■division, and E. S. Cook was appointed and qualified as the trustee of the estate of said Simon in said bankruptcy proceedings. After such appointment of Cook, application was made to the referee in bankruptcy for authority to litigate in this case the issues between the original parties to this action. This authority was given, and it was ordered that the trustee be substituted for the original defendant in the action. Application was then made in the court of common pleas by Cook to be so substituted. This the court refused to do, but ordered that Cook as such trustee be made a party defendant in the action, and thereupon he filed his answer as such trustee, and the case proceeded to trial. The result in the cqurt of common pleas was a verdict for the plaintiff; motion for a new trial •was filed and overruled, and judgment entered upon the verdiet. By proper proceedings the case is here for review upon a petition in error, and there is filed in tins court a bill of exceptions containing all the evidence in th; case.

It is urged there was error on the part of the court in the order that Cook be made a party defendant jointly with Simon, instead of his being substituted for Simon. It does not appear how either the defendant Simon or- the trustee Cook could have been prejudiced by the order made by the court of common pleas. Whatever defense Cook,could have made if he had been substituted for Simon, he was at liberty to make' whén he became a defendant jointly with Simon.

The suit was brought by Mooney as assignee, claiming to recover from Simon upon two causes of actions:

The first cause of action was for money which it was said Simon had received upon a large number of promissory notes, two checks, ard $2,700 in currency, all belonging to Jacobs, the assignor of Mooney, and no part of which had ever been paid over to either Jacobs or his assignee.

The second cause of action was for a quantity of silk which it was said, was owned by Jacobs 'at the time of his assignment, but which was then in the possession of the defendant Simon, and was by him converted to his own use.

Among the notes which, it was said in the petition, money had been realized upon by Simon, belonging to Jacobs, were three made by Whitney, Wable & Co., each calling for the payment of one thousand dollars. During the'trial, the plaintiff was permitted against the objection of the defendants, on his own motion, to withdraw his claim for these last three notes. And the court, in granting such permission, made the order “without prejudice to plaintiff.”

This is assigned as error. Whatever effect this order may have upon any future litigation in reference to these notes, we are unable to discover that any prejudice could' have come to the defendants by their withdrawal in this case.

Upon the trial of the case, the plaintiff put upon the witness stand the defendant Simon, and examined him under authority of section 5243, Revised Statutes. This section reads:

'“A party may be examined as if under cross-examination, at the instance of the adverse party, either orally, or by deposition, as any other witness; but the party calling for such examination shall not be concluded thereby But may rebut it by counter testimony.”

After the examination.of Simon by the plaintiff, the defendants claimed the right to cross-examine him and put such questions to him as would have been proper had he been the witness of the plaintiff in the ordinary way, but which were^, not proper if the examination of Simon by the plaintiff was' a' cross-examination.

It is urged that the language of the statute, “as if under cross-examination,” is not equivalent to saying that the party may be cross-examined. And it is said that this is borne out by the last clause of the section, which reads: “But the party calling for such examination shall not be concluded thereby but may rebut it by counter testimony.”

It is not conceded in the argument that without this clause in the section, the party calling a witness, would not be concluded by the testimony of the witness. But it is said that there is a popular understanding that he who calls a witness on his own behalf is bound by what the witness says, and is not permitted to disprove the testimony of such witness; and that (he legislature had this in mind when using the language quoted; and that this last clause would certainly not have been used if it had been the intention of the statute that when one is called as a witness by the adverse party, his examination of him should be a cross-examination, because nobody ever supposed that a party was bound by the answer to a question propounded by him upon cross-examination.

We think the position is unsound; that the effect of the statute is to authorize a party to call the adverse party and cross-examine him, and that the right of counsel for the party thus called, in examining him, is only what it would be if he had been cross-examined in the ordinary way.

But it is said that the verdict of the jury in this case was clearly against the weight of the evidence, and that the court, therefore, erred in overruling a motion for a new trial, which was made by the defendant after a verdict had been rendered, in favor of the plaintiff.

The determination of this question has been attended with no small amount of labor. The bill has been carefully examined. It is certain that much of the testimony given on' one side or the other is untrue; but if the jury believed the evidence offered by the plaintiff, i’t mighs be justified in returning the verdict which was returned.

It is said that the testimony of Isy Wohl, who was a witness on the part of the plaintiff, is so incredible that no attention whatever should have been paid to it; that the character of the man as developed by his own evidence is such as to render him entirely unworthy of belief.

If cannot be denied that his testimony puts him in a mosf unenviable light; and that may be said of others who testify in' this case. Wohl was the bookkeeper of Jacobs while he was m business. After the business which had been carried on by Jacobs was sold by his assignee to Simon, Wohl continued-to be such bookkeeper. The testimony of both Wohl and Simon, and the exhibits in the case, show that the manner of.doing business between Simon and Jacobs was wholly unbusinesslike, and that no such examination of the books of either as would disclose the relation and the standing of the accounts between the parties who transacted business in the' usual way would result in clearly showing how the accounts stood between these parties.

The jury, doubtless, came to the conclusion, that it was known both to Simon and Jacobs that Jacobs was- likely to fail, and that, for the purpose of keeping from the creditors of Jacobs when such failure should take place some of thé property of Jacobs, it was put in the hands of Simon with the understanding that it should at some time be returned to Jacobs.

We are not surprised that the jury came to such conclusion; And that being true, we think it is by no means certain that in making up the amount in Simon's hands for which he should account to the assignee of Jacobs, the jury made the amount too great.

The evidence as to the claim made in the second cause of action is such that the jury were clearly justified in coming to the conclusion to which they came. And though we are not by any means certain that the verdict was for the right amount, neither do we feel justified in say:ng that it was contrary to the evidence or not supported by sufficient evidence.

White, Johnson, McCaslin & Co, for Plaintiff in Error.

Judgment affirmed.  