Lange v. Braynard

De Haven, J. This action was originally commenced by the plaintiff against the defendants, C. P. Braynard, William Nagle, and P. M. Cleghorn, for the purpose of subjecting the land described in the complaint to the payment of a judgment theretofore recovered by plaintiff against defendant Braynard, the complaint alleging that said land had been conveyed by said Braynard to the defendant William Nagle, and by said Nagle to the defendant Cleghorn, and that said conveyances were both made without consideration, and for the purpose of delaying and defrauding the plaintiff and other creditors of the defendant Braynard. The defendants William Nagle and Cleghorn filed an answer denying the material allegations of the complaint, and thereafter, on May 4, 1891, and before the commencement of the trial of the action, the deposition of the defendant Braynard was taken by the plaintiff, the defendants Cleghorn and William Nagle being represented at the taking of such deposition by their attorney in the action, P. B. Nagle. The action was commenced in April, 1891, and it appears that prior thereto the defendant Cleg-horn conveyed the land in controversy to the said P. B. Nagle, but said deed was not recorded until August 17, 1891. Upon the trial, which was commenced in December, 1893, after the said deposition of Braynard had been read in evidence, and the testimony of other witnesses given, and the plaintiff had rested his case, and some testimony had been offered in behalf of defendants, the court made an order directing that the said P. B. Nagle be made a party defendant, which was accordingly done. It is shown by the bill of exceptions that upon the making of this order the said P. B. Nagle “then and there objected to being made a party defendant, and objected to said order unless he had the privilege of examining the witnesses introduced on behalf of [158]the plaintiff, and those already introduced upon behalf of the other defendants, and of cross-examining said witnesses and each and every one of them, and objected, and requested and moved the court that, so far as he was concerned, and against him, that the evidence of said plaintiff and his witnesses be not considered against him without his right to cross-examine the same, and moved the same be stricken out as to him; and on the further ground he objected to all the evidence and depositions heretofore introduced as against him, on the ground that the privilege of cross-examining and objecting to their evidence had not been accorded him, and as against him the same is and was irrelevant, immaterial, and incompetent." These objections and motions were denied, and in so doing the court stated: “ That the same objection and rulings and exceptions on the part of the other defendants may be considered as taken by P. B. Nagle." The plaintiff recovered a judgment in accordance with the prayer of the com plaint, from which, and the order denying their motion for a new trial, the defendants appeal.