Reynolds v. Fitzpatrick

• Decision Date: 11 May 1903
• Citation: 72 P. 510,28 Mont. 170
• Parties: REYNOLDS v. FITZPATRICK et al.
• Court: Montana Supreme Court

72 P. 510

28 Mont. 170

REYNOLDS v. FITZPATRICK et al.

Supreme Court of Montana

May 11, 1903

Commissioners' Opinion. Appeal from District Court, Deer Lodge County Welling Napton, Judge.

Action by J. B. Reynolds against John Fitzpatrick and John Conly, as sheriff and deputy sheriff. Judgment for plaintiff. Defendants appeal. Reversed.

W. H Trippet, for appellants.

H. R Whitehill, for respondent.

CLAYBERG C. C.

This case has heretofore been before the Supreme Court on appeal from a judgment of nonsuit, and was reversed and remanded. Reynolds v. Fitzpatrick, 23 Mont. 52, 57 P. 452. A trial of the case was then had in the court below, resulting in a verdict and judgment for the plaintiff. From this judgment, and from an order overruling a motion for a new trial, the defendant prosecutes this appeal. No new or amended pleadings were filed after reversal by this court. A very full and complete statement of plaintiff's case, and the testimony adduced in his behalf upon the first trial, is found in the opinion of the court (23 Mont. 52, 57 P. 452) which we adopt and refer to as a portion of the statement herein. It seems only necessary to add thereto the fact that, upon the retrial of the case, the plaintiff introduced additional testimony as to the value of the property, and the defendants introduced witnesses who also testified as to such value, and a witness who claimed to have been a bona fide purchaser of the property in question from one John A. Hall, who was in possession thereof at the time of the levy of the attachments in question, claiming its ownership.

The appellants assign four errors in their brief, as follows: (1) Refusal to strike out hearsay testimony. (2) Allowing plaintiff's witnesses to testify as to the value of the property, without proper qualification therefor. (3) Permitting the testimony of John A. Hall, who testified upon the former trial, to be read in evidence and considered by the jury. (4) Refusing to allow defendants to introduce proof of a sale of all the property in question by Hall to J. V. Collins, after the levy of the attachments in question. We shall consider these several assignments of error seriatim.

1. As to the first error assigned. The testimony, a part of which was sought to be stricken out, is as follows: "Mr. Hall met me down here on the street, and said he was about to buy it out only if I was satisfied. Clark told him that if I was satisfied they could make the trade. *** I did not hear the conversation, but he told me this." What Clark told Hall was undoubtedly the clearest kind of hearsay testimony, and, a seasonable objection having been made, should have been stricken out on motion.

2. As to the second error assigned. There was sufficient competent testimony introduced before the jury upon which they might have rendered their verdict for the plaintiff, under proper instructions of the court. The record does not contain these instructions, and we must presume that the court below properly directed the jury as to the consideration of the testimony adduced upon the different issues in the case. There was therefore no error upon these rulings.

3. As to the third error assigned. It is claimed that this testimony was admissible under section 3146 of the Code of Civil Procedure, which provides: "In conformity with the preceding provisions, evidence may be given upon the trial of the following facts: *** (8) The testimony of a witness deceased, or out of the jurisdiction, or unable to testify given in a former action between the same parties relating to the same matter." It is very apparent that, before such testimony became competent and could have been introduced, the burden of proof was upon the plaintiff to show the existence of one of the conditions of subdivision 8, supra, viz: (1) That the witness was dead; (2) that he was out of the jurisdiction; or (3) that he was unable to testify. The only preliminary proof offered was: First, a subpoena issued on September 19, 1899, to the sheriff of Deer Lodge county, requiring the witness' presence in court on September 23, 1899, which was returned by the sheriff to the effect that he had failed to find the witness; and, second, the testimony of plaintiff, which is as follows: "I will state what efforts I have made in endeavoring to discover the whereabouts of Mr. John A. Hall, who was a witness in the case the last time it was tried. I wrote to my daughter at Twin Bridges; she knew him; I wrote to Twin Bridges because I heard he lived there; that was his former residence, between there and Sheridan. She said she had not heard of him in two years. I also inquired of a man in Butte who said he knew him, and he told me that Hall had gone to the Klondike. I also inquired here of McKinnon & McKay; they were acquainted with him; they said they would know where he was; they had not heard of him for a couple of years. I heard he had worked for them in the store formerly; they said they had not heard of him for a couple of years, and could not tell where he was." This statute is but declaratory of the common law as announced by the decisions of the highest courts of several of the states, and therefore we must be guided in its application by the same rules as those applied by the common law in similar instances. We find, upon examination of the decisions, that a party seeking to introduce the testimony of a witness given upon a former trial is required to introduce preliminary evidence of the existence of the reasons for its introduction, and that, if it is sought to be introduced because of the absence of the witness from the jurisdiction of the court, the party seeking its introduction is required to show the fact of departure or absence by positive testimony, or by the existence of such circumstances as would warrant the inference of departure or absence. In Baldwin v. St. Louis, K. & N. Ry. 25 N.W. 918, the Supreme Court of Iowa uses the following language: "The fact that the witness had left the state should have been established by the testimony of some one who knew the fact, or could testify to circumstances within his knowledge which would justify the inference of such fact." See, also, Augusta & S. R. Co. v. Randall (Ga.) 11 S.E. 706; Mawich v. Elsey, 47 Mich. 10, 8 N.W. 587, 10 N.W. 57; Sluser v. City of Burlington, 47 Iowa, 300; Wilder v. St. Paul, 12 Minn. 192 (Gil. 116). The state of California has a statute similar to the above, under which the courts of that state have held that the witness must be out of the state, and if he is within its borders, although at a point...