Ill. Steel Co. v. Muza

• Decision Date: 14 November 1916
• Citation: 164 Wis. 247,159 N.W. 908
• Parties: ILLINOIS STEEL CO. v. MUZA ET AL.
• Court: Wisconsin Supreme Court

164 Wis. 247

159 N.W. 908

ILLINOIS STEEL CO.

v.MUZA ET AL.

Supreme Court of Wisconsin.

Nov. 14, 1916.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action by the Illinois Steel Company against Valentine Muza and others. From part of the judgment, plaintiff appeals. Affirmed.

This is an action in ejectment. The plaintiff is the holder of the record or paper title to the property in dispute. The defendants pleaded adverse possession under the 10 and 20 year statutes. At the opening of the defense, W. J. Buckley, the official stenographer and court reporter of Judge Ludwig's branch of the circuit court for Milwaukee county, was called as a witness, and was asked to read the original notes taken by him of the testimony of Jacob Muza and others, now deceased, during the trial of an action in which the Illinois Steel Company was plaintiff, and Anton Zelin and others were defendants. The land involved in the Zelin Case lies to the north of the land involved in the present case.

The circuit court admitted that portion of Muza's testimony as given in the Zelin Case which tended to show adverse possession of the premises involved in this action by Jacob Muza and others. Plaintiff took exception to the admission of such testimony. The court submitted the question of adverse possession to the jury in a special verdict, who found for the defendants. Judgment was entered in favor of the plaintiff for the easterly six feet of the premises as described in the amended complaint, and in favor of the defendants as owners in fee simple of all the remainder of the property here involved. This appeal is taken from that part of the judgment in favor of the defendants.Theodore Kronshage, John H. Paul, and J. W. McMillan, all of Milwaukee, for appellant.

Moritz Wittig and H. J. Killilea, both of Milwaukee, for respondents.

SIEBECKER, J. (after stating the facts as above).

[1] It is urged that the record does not disclose where the property here in dispute is located on Jones Island, nor its location with reference to the location of the Anton Zelin property. It is shown that the defendants' property lies in Cooper street between blocks 190 and 191 of the plat introduced in evidence exhibiting the platted area of Jones Island. On record pages 366 and 367 it appears that in response to the court's inquiry regarding the location of the property in litigation here in relation to the Anton Zelin property, plaintiff's counsel stated to the court that it was not denied--

“* * * that it lies south and a little to the west of the Zelin property, but the situation is just this: That there is no testimony in this Zelin Case which was given with reference to any other case except the Zelin Case.”

“Court: Yes. There was testimony of occupation of more land around it.”

It was also admitted that a strip, a few feet wide, lay between the Anton Zelin property and the property in litigation. We are satisfied from the record that the property in litigation and the Anton Zelin property were sufficiently identified, and that the location of them on the island was properly assumed by the circuit court to be in conformity to the representations of counsel of both parties.

[2] The principle question on this appeal relates to the competency of testimony given by witnesses, now deceased, on the trial of the case of Illinois Steel Co. v. Anton Zelin in the circuit court for Milwaukee county, in 1907. This testimony tended to show the use and occupation of some particular pieces of land there in dispute, and of some other portions of Jones Island, from a time prior to 1880 and thereafter, and that such occupancy was adverse and continuous to the time of such trial. The trial court overruled plaintiff's objection to such testimony, and held that the testimony is material and competent evidence in this case. The trial court based its ruling on the general rule of evidence established in the common law and the statutory declaration on the subject as contained in section 4141a, Stats., which provides:

“The testimony of any deceased witness, or any witness who is absent from the state, taken in any action or proceeding, except in a default action or proceeding where service of process was obtained by publication, shall be admissible in evidence in any retrial, other action, or proceeding when the party against whom it is offered shall have had an opportunity to cross-examine the said deceased or absent witness, and where the issue upon which it is offered is substantially the same.”

This court in the early case of Charlesworth v. Tinker, 18 Wis. 633, applied this common-law rule of evidence in a broad and liberal way. There the evidence of a deceased witness given by him in a criminal action for an assault and battery was held admissible in a subsequent civil action by the complaining witness in the criminal action to recover damages for the assault from the party who was prosecuted criminally. The trial court had excluded the evidence as incompetent, and on appeal this court declared:

“It is claimed that this evidence was properly excluded, because the testimony of the deceased witness was not given in a judicial proceeding in which the plaintiffs in this case were parties, and where they had the power to cross-examine the witness. It seems, however, to be well settled by many of the authorities, that it is not necessary, in order to admit such testimony, that it should have been given on the trial of a cause in the exact technical shape of the second action, or that the parties in this action should be literally or nominally the same with those on...