Kellogg v. Scheuerman
| Decision Date | 13 December 1897 |
| Citation | 51 P. 344,18 Wash. 293 |
| Parties | KELLOGG v. SCHEUERMAN ET UX. [1] |
| Court | Washington Supreme Court |
Appeal from superior court, King county; E. D. Benson, Judge.
Action by John D. Kellogg against Christian Scheuerman and wife. Judgment for plaintiff. Defendants appeal. Reversed.
Blaine & De Vries, for appellants.
Lindsay King & Turner, for respondent.
This action was brought to recover damages for malicious prosecution. The appellant Christian Scheuerman made complaint before a justice of the peace, charging the respondent and one Pratley with burglary in entering appellants' dwelling house. A warrant was issued, and the respondent and Pratley were arrested. Pratley was discharged upon a motion of the prosecuting attorney, and the justice of the peace discharged respondent, who thereafter brought this action, and recovered damages in the sum of $1,500; whereupon this appeal was taken.
It is first claimed that the court erred in admitting in evidence the complaint and warrant upon which the respondent was arrested; but there is no merit in this contention, for the defendants admitted the proceedings before the magistrate.
It is next contended that the court erred in allowing proof by one Bolster, a stenographer, who took the testimony given before the justice of the peace of what Scheuerman and his wife there testified to. The first ground of objection is that Scheuerman and his wife were still within the jurisdiction of the court, and that they should have been called to prove what their testimony was; and the second is that the evidence given was not the best evidence. There is no foundation for the first objection. The witness was just as competent, as a matter of law, to testify to what they swore to, as were the Scheuermans. The other ground of the objection should have been sustained. It is contended by the respondent that the witness only used his notes of the testimony to refresh his recollection, but this is not borne out by the record, for he was directed by plaintiff's attorney to read the testimony given by the Scheuermans which he did in its entirety. In State v. Freidrich, 4 Wash. 204, 29 P. 1055, 30 P. 328, and 31 P. 332, this court held that a stenographer who took down testimony could be asked as to what the testimony was, and could be permitted to refer to his notes to refresh his recollection, but that the notes were not competent evidence. However, it might be that the action of the court in the matter could be held harmless considered with reference to the objection raised that it was not the best evidence, for we fail to find any contradiction in their testimony here in any important particular of the fact that they testified before the justice of the peace as shown by the stenographer's report. In some instances they claimed that they were mistaken in giving such testimony, but admitted that they had so testified as to certain parts which were called to their attention. But it is further contended by appellants that much of the testimony given before the justice of the peace, and especially on the cross-examination of Mrs. Scheuerman, was inadmissible on this trial, and tended to prejudice the defendants. The respondent objects to the consideration of this, for the reason that appellants' brief does not indicate the part of the record where such testimony and the objection thereto can be found. It is true, it is not stated under the third point where the matter is argued; but in making their statement of the case in the forepart of their brief the appellants have specifically called attention to the particular pages of the record where the objectionable matter may be found. One of the grounds of the objection was that it...
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