Breeden v. Martens
| Decision Date | 03 July 1907 |
| Citation | 112 N.W. 960,21 S.D. 357 |
| Parties | BREEDEN v. MARTENS. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Hughes County.
Proceedings by James K. Breeden against Glenn W. Martens. Judgment for defendant. Plaintiff appeals. Affirmed.
Charles E. De Land and John Sutherland, for appellant.
Gaffy & Stephens, for respondent.
This proceeding was commenced in December, 1906, by the service of a notice of contest, wherein the plaintiff alleged in substance that he was elected county judge of Hughes county at the general election of 1904; that he duly qualified and entered upon the discharge of the duties of that office; that the defendant was duly elected to the same office at the general election of 1906, for the term beginning in January 1907; that a certificate of election was duly issued to the defendant; that the defendant when elected was not 25 years of age; and that the plaintiff is entitled to retain the office until an eligible person shall have been elected and qualified. The defendant answered, denying that he was under 25 years of age when elected, and alleging that the plaintiff was a defeated candidate for the office in question at the election of 1906. The learned circuit court found that defendant was 25 years of age when elected, and entered judgment dismissing the proceeding on the merits. The plaintiff gave notice of intention to move for a new trial. While such motion was pending he appealed from the judgment and subsequently appealed from an order denying his application for a new trial.
Plaintiff's objection to the introduction of any testimony under the answer was properly overruled. The notice of contest disclosed that defendant was entitled to the office unless he was under the constitutional age when elected. He was not required to plead facts already alleged by the plaintiff, and which were to be taken as true if not controverted by his answer.
Mr. and Mrs. S. F. Radcliff having testified on behalf of the plaintiff that they knew defendant was born in November 1882, because they were married February 6, 1882, their first child was born November 13, 1882, they were neighbors of and well acquainted with defendant's parents, and their first child was born a week or ten days before the birth of the defendant, the plaintiff offered in evidence what purported to be a certificate showing that the Radcliffs were married on the date stated in their testimony. To this offer the defendant objected, and the objection was sustained. Assuming that the proper foundation was laid and that the certificate was admissible in corroboration of the Radcliff's testimony, the exclusion of the certificate did not constitute reversible error. It was the date of defendant's birth, not the date of the Radcliff marriage, which was in issue. The latter date was only a collateral circumstance in itself immaterial, which was established by other competent, uncontradicted evidence. An error, if any, in excluding evidence is without prejudice where the fact which it tends to prove is established by other competent evidence. Muller v. Flavin, 13 S.D. 595, 83 N.W. 687; Ochsenreiter v. Elevator Co., 11 S.D. 91, 75 N.W. 822; Distad v. Shanklin, 15 S.D. 509, 90 N.W. 151. The trial was by the court. The certificate was in the possession of the Radcliffs. It corresponded with their testimony. The trial judge will be presumed to have known what it disclosed, the Radcliffs to have known when they were married. No one contradicted their statements with respect to the date of such marriage. The fact that they were married on February 6, 1882, with all the inferences flowing therefrom, lost nothing in probative force by the exclusion of the certificate.
Mrs. Charles Brandt, having stated in her deposition taken and read by the defendant that she knew defendant's parents and that defendant was born in 1881, was asked: "What time in the year?" and answered: "So far as I remember, just as Mrs. Moore said." Plaintiff moved to strike out this answer as hearsay, and contends the court erred in overruling his motion. The contention is clearly untenable. Mrs. Moore, in giving her deposition at the same time and place, had stated that the defendant was born in the early part of the winter of 1881. Mrs. Brandt merely referred to Mrs. Moore's statement and made it her own. It was the same as if, her attention having been called to a letter or other writing, she had said the statement therein was true. She was not testifying to what Mrs. Moore had told her, but to a fact within her own knowledge, adopting Mrs. Moore's language in place of using her own.
It is contended the court erred in allowing Albert W. Movius, whose deposition was taken and read by defendant, to testify that while living at Big Stone, Dakota Territory, now South Dakota, he held the office of justice of the peace, and as such performed a marriage ceremony for defendant's parents in the first days of February, 1881, for the reason that the record of his election or appointment to that office was the best evidence. The contention cannot be sustained. Neither the legality of the witness' office nor the validity of the marriage, if one was solemnized, was in issue. The only material matter was whether the witness, purporting to act as a justice of the peace, in fact performed the marriage ceremony at the time and place stated in his testimony. Even if he had not been a justice, either de jure or de facto, the marriage would have been valid, provided the contracting parties acted in good faith, and, even if the marriage was a nullity, the fact that a ceremony was performed at the time stated was relevant, and there could be no better evidence of that fact than the testimony of the person who performed the ceremony. Nor was it error to allow this witness to state that he made a record of the marriage in his official docket without producing the original. It appeared that when his deposition was taken the witness resided in North Dakota; the docket was not in his possession or under his control; and, moreover, he did not testify to the contents of a written instrument, only to the fact that he made an entry at the time, a statement more beneficial to the plaintiff than to the defendant, as it appears that the docket in question was subsequently in the possession of plaintiff's principal and most friendly witness, who was permitted to testify, without producing the original, that it contained no record of the alleged marriage.
The contention that the deposition of Mrs. Brandt, Frank Thorndyke, and Gus Yonker, taken and read by defendant, should have been suppressed on the ground that no oath was administered to the witnesses, is not tenable. In the first place, it does not appear that the plaintiff, who was represented by counsel at the taking of depositions, made any objection to the manner in which the oath was administered; and, in the second place, the trial court was justified in finding from the evidence touching this matter that the witnesses were in fact sworn by the notary, though the form of the oath was dictated by the defendant, who was personally present, the notary being unfamiliar with court proceedings.
Mrs. Brandt gave two depositions. In the first, taken and read by the defendant, she said the defendant was born early in the winter of 1881. In the second, taken and read by the plaintiff, she said he was born one year later; that she made a mistake in giving her first deposition; and fully explained the circumstances which she claimed had led to the discovery of her mistake. Such being the condition of her testimony, the plaintiff offered to read in rebuttal from the deposition of A. M. Morrill, an attorney employed by him in taking depositions, certain conversations between Morrill and Mrs. Brandt occurring after her first deposition was taken, in which she gave the same explanation regarding the discovery of her alleged mistake as given in her second deposition. These conversations were properly excluded, where it is attempted to show that a witness has made statements inconsistent with his testimony, it may be proper to prove other declarations consistent with his testimony, but this is not that case. Here the witness, Mrs. Brandt, in her second deposition, which was read by the plaintiff as a part of his evidence in chief, admitted that she had testified differently in her first deposition. Her testimony would have stood in precisely the same light if her first deposition had not been introduced. The repetition of the statements in her second deposition to plaintiff's attorney or to any number of persons could add nothing to its weight or in any manner affect the consequences of her confessed mistake.
When Mrs. Brandt's second deposition was taken she produced a Bible which purported to contain a record of her daughter's birth. As we understand the bill of exceptions, this record was offered in evidence when her deposition was taken, but was not returned with the deposition or offered on the trial. One of the objections made to its introduction when the deposition was taken was to the effect that the entry appeared to have been altered. S F. Radcliff, having been called by the plaintiff in rebuttal, stated that he saw this bible at Mrs. Brandt's residence in January, 1907. He was then asked this question: This was objected to as not proper rebuttal, not the best evidence, and as seeking to show an instrument which plaintiff has offered in evidence and failed to produce as an exhibit. The objection was properly sustained. The entry itself was the best evidence and should have been produced, because plaintiff was in position to...
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