Atherton v. Defreeze

Decision Date28 January 1902
Citation129 Mich. 364,88 N.W. 886
CourtMichigan Supreme Court

Error to circuit court, Shiawassee county; Stearns F. Smith, Judge.

Action by John J. Atherton against Aaron Defreeze. From a judgment in favor of defendant, plaintiff brings error. Reversed.

A. J Kellogg (John T. McCurdy, of counsel), for appellant.

Martin V. B. Wixom, for appellee.


This is an action of replevin for two horses, and originated in justice court. Plaintiff derived his title from one Susan Whitman by a bill of sale. Defendant owned a farm and as unmarried. Mrs. Whitman, who was married, lived with defendant as his housekeeper. She testified that she was employed at $2 per week, and he testified that the arrangement between them was: 'Mrs. Whitman and me agreed to live together as long as we lived, and after I was dead she was to have what we had left.' The title to the horses was the issue, and upon this the testimony was conflicting. There are 66 assignments of error, nearly all of which pertain to the rulings of the court in admitting and rejecting testimony. The comments made in Boydan v Haberstumpf (Mich.) 88 N.W. 386, apply with equal force in this case. The proceedings from the beginning to the end of the trial constitute a 'comedy of errors,' rather than the orderly trial of a lawsuit. To the rulings of the court the attorney for the defendant seemed to pay no attention, as the following instance will illustrate: Upon the cross-examination of Mrs. Whitman the same question was repeated to her three times, notwithstanding the court each time ruled the question as incompetent, and the ruling was correct. The sole purpose of the question was to prejudice the jury. A severe reprimand, if nothing more severe, should have been administered. The same witness was asked if defendant's farm was not sold before she went to New York state. Objection to the question as incompetent and immaterial was sustained, whereupon the defendant's attorney said: 'It is important, as I stated to the jury. She stayed with him till the farm was gone, and then abandoned him.' There was no foundation for this remark. The rule for impeaching a witness by proving contradictory statements was wholly ignored, within the rule of People v. Riede, 121 Mich. 700, 80 N.W. 796, and many other cases.

One Miller, who formerly owned the horses, testified that he sold them to Mrs. Whitman, and that after the suit was brought he had a conversation with defendant; that defendant asked him what he knew about the case; that witness told him that, at the time of the sale, defendant said that the cows for which he exchanged the horses belonged to Mrs. Whitman, and that defendant said it looked as though he would get beaten. On cross-examination by the defendant's attorney, the witness, in reply to the question, 'What else did he say?' said: 'He said he was so blind he couldn't see; and I asked him about how much the colts were worth, and he said about $300, and if he didn't get them he would go to the poor house.' Plaintiff's attorney moved to strike out the answer as incompetent, immaterial, and not relative to the issue. The court denied the motion; holding the answer 'competent as testing the recollection of the witness, and as a conversation between him and the defendant.' The motion should have been granted. A witness' recollection cannot be tested by introducing irrelevant and immaterial matters. Parts of a conversation, having no reference...

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