Twohig v. Leamer
| Decision Date | 06 May 1896 |
| Docket Number | 6557 |
| Citation | 67 N.W. 152,48 Neb. 247 |
| Parties | J. P. TWOHIG v. PERRY LEAMER |
| Court | Nebraska Supreme Court |
ERROR from the district court of Dakota county. Tried below before NORRIS, J.
AFFIRMED.
W. E Gantt, for plaintiff in error.
R. E Evans, contra.
This, an action of ejectment, was commenced by the plaintiff in the district court of Dakota county, to recover possession of the south half of the southeast quarter of the northwest quarter of section 18, township 28 north, of range 9 east. The defenses stated in the answer were adverse possession in the defendant and his grantor for more than ten years prior to the commencement of the action, the possession of the grantor being, it was alleged, under a tax deed issued to him by the treasurer of Dakota county. There was also pleaded in the answer the payment by defendant and his grantor of all taxes assessed against the land in controversy for the years 1865 and each succeeding year up to and including 1890. There was a reply filed and a trial of the cause and judgment rendered, which, as is the practice, was set aside on motion of the defeated party. Subsequently amendments of the pleadings, or some of them, were allowed to be made, but we need not particularly notice them. A second trial of the issues to the presiding judge, a jury being waived, resulted in a judgment in favor of defendant, and seeking its reversal, the plaintiff presents the case to this court by error proceedings.
The first objection of plaintiff to which our attention has been directed by counsel in the arguments in the brief of questions presented for review is that the trial judge erred in admitting the testimony of M. C. Beck, who was called to state the evidence given in this case before him as referee by a witness since deceased. It is contended that no sufficient foundation was laid for the introduction of the testimony to which we have referred. It must be borne in mind, in solving this question, that the trial in progress was before the judge, without the intervention of a jury, and that the trial judge, if such was the fact, admitted this evidence without the proper foundation having been laid for its introduction, would not be sufficient to call for a reversal of the judgment. The judge, where the trial is to him without the intervention of a jury, is presumed to sift the evidence and base his findings on that which is proper and competent, and that alone. It was of the record of this case that there had been a prior trial of it. It was shown that Mr. Beck, the witness being interrogated, had at one time been appointed referee to take testimony in this case; that as such referee he took the testimony of one Thomas L. Griffey, who had died some time between the date of taking his evidence by the referee and the time of this the second trial of the cause, and it was further shown that the report of the referee containing the evidence of the deceased witness, Thomas L. Griffey, had been filed in the proper office and made of the papers in the case, but had been lost or mislaid. After the foregoing facts appeared in evidence, Mr. Beck was asked to state what testimony Thomas L. Griffey had given relative to his title or claim to the property in controversy in this action, and the counsel for plaintiff then objected to the proposed evidence, as "incompetent, irrelevant, and immaterial; further, the witness has not shown himself competent, for the reason that he does not show that he remembers what was said." This objection was overruled and the evidence admitted. The objection was well taken. It had not been shown that the witness then testifying recollected and could state the substance of the evidence given by the deceased witness. Unless Mr. Beck did recollect and could state the substance of the evidence by such witness, his evidence should not have been admitted, and that he could do so should have been made to appear before he was allowed to testify; but, as we have seen, the mere erroneous admission of this evidence in the trial of the cause before the judge without a jury does not call for the reversal of the judgment. The witness, as a preface to his testimony, said that his recollection was not very vivid as to Mr. Griffey's testimony, but that he remembered something of the substance of it, and in attempting to state it he at all times gave, as he said, what the deceased witness had testified, not the sense or meaning which he, Beck, had drawn from the testimony of Griffey, and was clothing in words, but in substance, the evidence he had heard as referee. This rendered the testimony of this witness competent to be considered by the judge in a determination of the issues in the cause, if it was not open to the further criticism urged against it by counsel under this same objection, viz., that it should have been shown that at the time the evidence of the deceased witness was taken there was a cross-examination on behalf of plaintiff, or an opportunity afforded for it. It has been...
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