Reno Mill & Lumber Co. v. Westerfield
Decision Date | 28 February 1902 |
Citation | 67 P. 961,26 Nev. 332 |
Parties | RENO MILL & LUMBER CO. v. WESTERFIELD. |
Court | Nevada Supreme Court |
Appeal from district court, Washoe county; B. F. Curler and G. F Talbot, Judges.
Action by the Reno Mill & Lumber Company against W. J. Westerfield. Judgment was rendered in favor of plaintiff, and from an order granting a new trial the plaintiff appeals. Reversed.
A. E Cheney, for appellant.
F. H Norcross, for respondent.
This action was brought to recover the value of building material furnished defendant and used in the construction of his house, and for which he promised to pay its reasonable value. The answer denied that the material was furnished defendant, or that he promised to pay therefor, and alleged that it was sold to one Holesworth. Judgment was rendered for $1,114.04. The district court granted a new trial upon the ground of error in the refusal of the district judge to testify. The appeal is taken from this order.
During the progress of the trial and some time after the closing of plaintiff's case, the court allowed respondent to recall Mr. Holesworth for further cross-examination for the purpose of laying a foundation for impeachment. In the meantime, and before the witness had been recalled, the judge presiding at the trial, and by whose testimony Holesworth was sought to be impeached, after argument of counsel and due consideration, refused to be sworn and testify. Holesworth was recalled, but counsel declined to further cross-examine, and no foundation was laid for the impeaching evidence. The necessity of laying the foundation for an impeachment and the reason upon which it is founded were ably considered in the case of Mattox v. U. S., 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409. The court said: ' Of the rule as above announced Prof. Greenleaf says: "This course of proceeding is considered indispensable from a sense of justice to the witness, for, as the direct tendency of the evidence is to impeach his veracity, common justice requires that, by first calling his attention to the subject, he should have an opportunity to recollect the facts, and, if necessary, to correct the statement already proven, as well as by a re-examination to explain the nature, circumstances, meaning, and design of what he is proven elsewhere to have said." Greenl. Ev. § 462. In Runyan v. Price, 15 Ohio St. 1, 86 Am. Dec. 459, one of the subscribing witnesses to a will had died. The contestants offered in evidence his declarations respecting the capacity of the testator to make a will at the time the one in question purported to have been made for the purpose of impeaching his testimony. "It seems to me," said the court, The subject was considered by the supreme court of Colorado in Ryan v. People, 21 Colo. 125, 40 P. 777, in these words: ." In excuse of the course pursued it is said that it would have been a vain thing to have laid the foundation for an impeachment after the judge had refused to be sworn. According to the great weight of authority the rule was established for the protection of witnesses whose veracity was assailed, and its enforcement is not a matter of form, to be changed by the hardship of a particular case. "The true principle of the rule," said the supreme court of Kansas, "seems to be that the witness whose testimony is to be impeached, and the party to be affected thereby, are of right entitled to any explanation which the former can give of the statements imputed to him." Greer v. Higgins, 20 Kan. 424. Having reached the conclusion that it was not error, under the facts in the court below, to refuse to be sworn as a witness, counsel for respondent proceeds in his brief to the discussion of other questions made in the statement upon motion for new trial. The record shows that the new trial was ordered "for the reason that the defendant was deprived of the testimony of Judge Curler at the former trial, and such testimony may have been material." Both counsel concede that was the only ground considered by Judge Talbot, who heard the motion for new trial. Under these circumstances, is it our duty to consider questions raised by the statement on motion for new trial, and not considered by the judge before whom the motion was...
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Reno Mill & Lumber Co. v. Westerfield
...P. 899 26 Nev. 332 RENO MILL & LUMBER CO. v. WESTERFIELD No. 1,614.Supreme Court of NevadaAugust 14, 1902 For former report, see 67 P. 961. rehearing. Granted. BELKNAP, J. In the opinion heretofore filed importance was attached to the statement of respective counsel that the only matter con......