Dayton v. Fenno

• Decision Date: 01 February 1921
• Citation: 99 Or. 137,195 P. 154
• Parties: DAYTON v. FENNO.
• Court: Oregon Supreme Court

195 P. 154

99 Or. 137

DAYTON v. FENNO.

Supreme Court of Oregon, En Banc.

February 1, 1921

Appeal from Circuit Court, Deschutes County; T. E. J. Duffy, Judge.

Action by F. E. Dayton against W. S. Fenno. From judgment for plaintiff, defendant appeals. Reversed and remanded.

The plaintiff commenced an action of ejectment against the defendant in the circuit court of the state of Oregon in and for the county of Deschutes. The complaint alleges: (1) The nature of the plaintiff's estate in the real property therein described; (2) that he is entitled to the immediate possession thereof; and (3) that the defendant wrongfully withholds possession of the same from him. The defendant answering the complaint, denied each and every allegation thereof, and pleaded the nature and duration of his right to the possession of the premises involved. Issue was joined as to the new matter in the answer by the reply, and trial was had. At the conclusion of the testimony offered upon the part of the plaintiff, the defendant moved for a nonsuit, which was denied by the court. Thereupon the defendant offered testimony, and, upon resting his case, the plaintiff moved for a directed verdict, which motion was granted by the court over the objection of the defendant. A verdict was returned by the jury in accordance with the order of the court, and thereafter judgment was entered upon the verdict adjudging that the plaintiff, F. E. Dayton, have and recover of and from the defendant, W. S. Fenno, the possession of the land described in the complaint. From the judgment entered the defendant appealed to this court, alleging error as follows:

"The court erred in admitting evidence on the part of the plaintiff and objected to by defendant as shown by bill of exceptions.

"The court erred in refusing to grant a nonsuit, at the close of the testimony of plaintiff, as moved for by defendant as shown by the bill of exceptions, page 4.

"The court erred in sustaining the objections of plaintiff to testimony offered by defendant as shown by the bill of exceptions.

"The court erred in directing a verdict for the plaintiff and taking the case from the jury when there was testimony on the part of the defendant showing that he had purchased the property in question from plaintiff and no proof having been offered that defendant was in any way in default, there being evidence which should have gone to the jury upon the question of the right of possession."

W. P Myers, of Bend, for appellant.

De Armond & Erskine, of Bend, and N. G. Wallace, of Prineville for respondent.

BROWN J. (after stating the facts as above).

The record shows that the plaintiff, F. E. Dayton, when upon the witness stand, testified that he was the same Dayton named as the grantee in a certain deed to real property marked for identification and later offered and admitted in evidence, bearing date the 24th day of December, 1917, executed by G. W. Horner and Carrie Horner, conveying to plaintiff the southwest quarter of the northeast quarter and the northwest quarter of the southeast quarter of section 27, township 16 south, range 11 east, W. M. Upon plaintiff's offering the deed as evidence, defendant, by his counsel, interposed the following objection:

"At this time the defendant objects to the introduction of this deed, for the reason that there is nothing in the certificate and nothing in the record or in the evidence tending to show that this is the last instrument of record in the clerk's office pertaining to this land or the title to this land. They might bring a deed here and offer it in evidence upon which a number of other deeds had afterward been drawn. They must show that this is the last record evidence of the title in order for it to be admissible, and we object to it unless that is done."

The court overruled this objection, and the instrument (the deed) previously marked "Plaintiff's Exhibit A for Identification" was thereupon received in evidence. Defendant saved an exception. There was no error in the court's ruling. The deed offered and admitted in evidence was a conveyance of the premises from Dayton's grantors to himself as grantee, and it was material in establishing the nature of plaintiff's estate in the lands involved in litigation. The record further discloses that the plaintiff had not conveyed the premises, and the defendant was in the possession of the same at the time of the filing of the action and had been for over a year, and that possession thereof had been demanded. The defendant also objected to the testimony of the plaintiff wherein he testified that the defendant was in possession of the premises. The record shows the following question, objection, exception, and answer:

"Q. At the time this action was filed, Mr. Dayton, the exact date or which I do not remember, who was in possession of that property?

"Objected to as incompetent, irrelevant, and immaterial, unless it is shown that some one was in unlawful possession of it contrary to the desires and wishes of this plaintiff.

"The Court: Objection overruled.

"Mr. Myers: Save an exception.

"A. W. S. Fenno."

One of the necessary facts to prove in the case before plaintiff could prevail was the defendant's possession of the premises. How could unlawful possession be shown in the defendant unless plaintiff established that the defendant was in possession? There could not be unlawful possession without possession. During the course of the trial, plaintiff called the defendant to the witness stand, and the following colloquy ensued:

"Q. Mr. Fenno, at the time of the filing of this action, were you or were you not in possession of the lands described in this complaint? A. I was in possession.

"Q. And are you still in possession? A. As far as I know, yes, lawful possession.

"Q. Are you living there? A. Yes, sir.

"Q. Prior to the filing of this suit did you ever receive from Mr. Dayton a written demand for the possession of this property? A. I received notice by the deputy sheriff. I supposed it was some kind of a legal paper to begin with until I examined it; I afterwards concluded it was not perhaps, but I found out later it was not considered legal. It was a notice to get out, which I did not observe.

"Cross-examination by defendant's counsel:

"Q. Mr. Fenno, you say you were in possession of these premises at the time this action was instituted? A. Yes.

"Mr. Myers: I now hand to the reporter two certain instruments here, one backed in a cover, the other upon yellow paper, and ask to have them joined together and marked as 'Defendant's Exhibit 1 for Identification.' Instruments marked.

"Q. I now hand you, Mr. Fenno, Defendant's Exhibit 1 for Identification, ask you to examine it and state whether or not you were holding possession under those instruments?

"Mr. Wallace: That is objected to as being incompetent, irrelevant, and not proper cross-examination, and for the further reason that, if admissible for any purpose, it is admissible as a matter of defense, the witness not having been questioned as to his right of possession or his reasons for holding the possession, the only thing propounded to this witness being that of the possession and demand.

"Mr. Myers: If the court please, when they place this witness upon the stand they make him their witness, they ask him relative to this possession, whether he had possession at the time, whether he had possession before, whether he had possession now. Now, we are simply going into the matter of this possession and as to what kind of possession it was.

"The Court: The offer will be denied.

"Mr. Myers: Save an exception. That is all, Mr. Fenno."

The court committed no error in sustaining the objection. The witness had been examined in chief only upon the question as to whether or not he was in possession of the premises in controversy and as to whether he had been served with notice to quit. The character and the nature of the possession were not inquired into. That was a matter of defense. Our Code provides that the order of the proof shall be regulated by the sound discretion of the court. Section 853, Or. L. It further provides that "the adverse party may cross-examine the witness as to any matter stated in his direct examination, or connected therewith." Section 860, Or. L. Under the provisions of this section, a party may not cross-examine a witness on any matters other than those stated in the direct examination or properly connected therewith. Ah Doon v. Smith, 25 Or. 89, 34 P. 1093. In Benson v. Johnson, 85 Or. 677, 684, 165 P. 1001, 1003, it is said that:

"According to the weight of authority in the United States, the cross-examination of a witness is limited to an inquiry into the facts and circumstances connected with the matters brought out on the direct

...