Connor v. Raddon

• Decision Date: 01 April 1898
• Docket Number: 881
• Court: Utah Supreme Court
• Parties: ELLEN CONNOR, APPELLANT, v. SAMUEL L. RADDON ET AL., RESPONDENTS

52 P. 764

16 Utah 418

ELLEN CONNOR, APPELLANT, v. SAMUEL L. RADDON ET AL., RESPONDENTS

No. 881

Supreme Court of Utah

April 1, 1898

Appeal from the Third district court, Summit county. A. G. Norrell Judge.

Ejectment by Ellen Connor against Sampel L. Raddon and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

Powers Straup & Lippman, for appellant.

Brown &amp Henderson, for respondents.

ZANE, C. J. BARTCH and MINER, JJ., concur.

OPINION

ZANE, C. J.:

This action was brought to recover the north 4 feet and 7 1/2 inches of lot 5, in Park City, Summit county. The case was tried by the court, who made findings of fact, stated its conclusions of law, and entered judgment against the plaintiff, from which judgment this appeal is taken.

The defendants, having filed an answer on September 23, 1896, denying all the material allegations of plaintiff's complaint, and alleging ownership and right of possession in themselves, on the 26th day of the following February, before the trial commenced, asked leave to amend their answer by the further allegation that the fee of the land was in David C. McLaughlin, and that they held under him. They still claimed the legal right to the property, but gave a more particular description of it, by mentioning a fact which the record shows, that the fee was in McLaughlin. We find no error in the order of the court granting leave to file the amendment. Nor do we think the court erred in overruling plaintiff's motion to require the defendants to elect upon which defense they would rely. There was substantially but one defense presented by the answer.

The witness McLaughlin testified that he had a conversation with plaintiff in his office in 1892, in which he stated, among other things, that he made a proposition to sell plaintiff the ground in dispute, with other land, for $ 2,000, and that she accepted it. The plaintiff was asked by her counsel as to the same conversation, in rebuttal, and she stated that she heard him testify, and she denied the conversation. She was again asked substantially the same question, and counsel for the defendants objected on the ground it was not rebutting testimony, and the court sustained the objection. This ruling was excepted to, and is assigned as error. The plaintiff had testified on her examination in chief that there never was any talk between them about buying the property. In view of this, it was not reversible error to sustain the objection, though we are of the opinion it would not have been error to overrule it. The exception was not well taken.

The plaintiff was also asked by her counsel: "Did you hear McLaughlin testify that you said, 'Did not I tell you that I wanted to buy this ground?' and she answered. 'Yes. sir'? Was that true or false?" Defendants' counsel objected because it was not rebutting testimony. The court sustained the objection, and plaintiff's counsel objected, and assigns the ruling as error. The plaintiff had narrated in...