Vande Veegaete v. Vande Veegaete

Promissory Notes ? Mortgages ? Pleading ? Evidence Admissible ? Witness Testifying Falsely ? Credibility ? Erroneous Instruction. Appeal and Error ? Motion to Strike ? Failure of Record to Show Disposition of Motion ? Alleged Error not Reviewable. 1. An assignment based on the alleged erroneous refusal of the trial court to strike a paragraph of the complaint will not be considered on appeal where the record simply shows a notice of intention to move to strike, but not that the motion was ever presented to or ruled upon by the court. Contracts ? Mortgage and Promissory Note to be Taken Together. 2. Under section 7533, Revised Codes of 1921, providing that several contracts relating to the same matter, between the same parties, and made as parts of substantially one transaction, must be taken together, stipulations embodied in a mortgage become a part of the note securing which it is given even though the note contains no mention of the mortgage. Promissory Note Secured by Mortgage ? Pleading ? Evidence Admissible. 3. Without passing upon the propriety of plaintiff pleading in his complaint a mortgage given to secure the note upon which he sues, held, that where plaintiff did plead it, as well as the fact that defendant had disposed of the chattels upon which it was given, and defendant joined issue thereon, he was properly permitted to introduce testimony in his case in chief that the mortgage had become valueless without any fault on his part. Witnesses ? False Testimony ? Credibility of Witness ? Erroneous Instruction. 4. An instruction that where a witness has willfully testified falsely as to a material matter in the case, the jury may disregard any and all of his testimony, except in so far as it was corroborated by other credible evidence, held erroneous, the statute (sec. 10672, Rev. Codes 1921) going no further than to provide that the jury may look with distrust upon the testimony of any witness found to have so testified, making no exception in favor of one who has been corroborated. - Page 53