McGeoch v. Carlson

• Decision Date: 30 April 1897
• Citation: 71 N.W. 116,96 Wis. 138
• Parties: MCGEOCH ET AL. v. CARLSON.
• Court: Wisconsin Supreme Court

96 Wis. 138

71 N.W. 116

MCGEOCH ET AL.

v.CARLSON.

Supreme Court of Wisconsin.

April 30, 1897.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by Arthur N. McGeoch and another, executors of Peter McGeoch, against O. W. Carlson. Judgment for defendant, and plaintiffs appeal. Reversed.

This was an action brought by Peter McGeoch against the defendant, in justice's court, for the conversion of a horse, the property of said McGeoch, alleged to have been stolen from him, and that it afterwards came to the defendant's possession, who held the same, and claimed it as his own property, and, upon demand therefor, refused to give it up. The defendant answered by a general denial, and alleged that he purchased and paid for the horse at a reasonable price, and that he had the title to it. The plaintiff had judgment, and the defendant appealed to the superior court. Plaintiff having died, the action was, on suggestion, continued in the name of the present plaintiffs, as his executors. At the trial in the superior court, the plaintiffs called as a witness the justice of the peace before whom the action was tried, and who had taken down the evidence at the trial, and offered to prove by him what the plaintiffs' testator testified to, as a witness in his own behalf, on such trial, in reference to the horse, the defendant being represented by counsel at such trial. The witness testified that he might not have taken down every word that was said by McGeoch, but took down all of the material statements that he made, both on direct and cross-examination, and that he had the minutes with him. The plaintiffs' counsel offered the minutes in evidence, but, upon objection, they were excluded. The witness was asked these questions, namely: “What did McGeoch at that time testify as to who was the owner of the horse? What did he then testify to as to who had possession of the horse? What did he then testify to as to whether that horse was stolen from him, and when?” Each of these questions was objected to, on the ground that it was incompetent and immaterial, and in each instance the objections were sustained. The plaintiff offered to prove by the said justice that on the former trial he was present, and heard and took down the evidence of McGeoch, and what McGeoch testified to in reference to who was the owner of the horse, and when it went out of his possession, and how and when he last saw it, and that the justice made a...