Wright v. Wright
| Decision Date | 09 October 1897 |
| Docket Number | 10037 |
| Parties | ELIZA JANE WRIGHT, as Administratrix of the Estate of R. H. Wright, v. JAMES W. WRIGHT |
| Court | Kansas Supreme Court |
Decided January, 1897.
Error from Sumner District Court. Hon. J. A. Burnette, Judge.
Judgment reversed.
J. S Dey and Levi Ferguson, for plaintiff in error.
W. W Schwinn, for defendant in error.
The defendant in error sued the plaintiff in error upon a promissory note; and she, by way of set-off, alleged in her answer that plaintiff had wrongfully possessed himself of a certificate of deposit of money belonging to her intestate and had wrongfully converted such money and certificate to his own use. The material question in the case was: To whom did the money represented by the certificate belong--the plaintiff, or the deceased?
W. H. Burks, cashier of the bank which issued the certificate, being called as a witness by the defendant, produced and identified it. It was made payable to the deceased, R. H. Wright, and bore his indorsement. The witness testified to its payment to another bank which held it and had forwarded it for collection. This was the extent of his testimony in chief. On cross-examination, the court permitted the plaintiff to draw out matter tending quite strongly to show that the money represented by the certificate belonged to the plaintiff, and not to R. H. Wright, in whose name it was issued. This is alleged as error.
Previous to the trial, the plaintiff had been in litigation with another person, and had given testimony to the effect that the money represented by the certificate belonged to R. H. Wright, and not to himself. The defendant desired to prove the admissions thus made, and called as a witness the official court stenographer who had taken the plaintiff's testimony in the former case. This witness produced his notes of the testimony in question, and said he knew he had taken such testimony correctly, but that he had no recollection of it so as to give even its substance, and could only give it by reading from his notes; that independent of such notes he had a recollection of some striking features in the testimony, but he would not undertake to give anything like the substance of it without referring to them, although he remembered certain expressions the witness had used. The following questions were then asked: "Can you remember the testimony of a witness given at the trial, where you report his evidence in short hand, as well from having reported such testimony as you could by sitting in the court-room and listening to the testimony?" The witness answered "No, sir," and gave reasons why he could not do so. "Then, do I understand you to say that you would depend entirely, absolutely, and exclusively upon the characters made by you at the time the testimony was taken, as to what the testimony of the witness was, and not on your memory at all?" The witness answered "Yes," and added that teachers of the stenographic art insisted that such should be done. The defendant then asked that the witness be allowed to read his notes of the testimony in question; which request was refused. He then offered to introduce in evidence a type-written translation of such notes, which offer was also refused. This is likewise alleged as error.
For the purpose of proving the admissions attributed to the plaintiff upon the trial of the former case, the defendant offered as a witness, James A. Ray, a former judge of the district court, before whom such case had been tried, and who gave testimony tending to prove that plaintiff had admitted that the money represented by the certificate belonged to R. H. Wright, and not to himself. Upon cross-examination the following questions were asked of Judge Ray:
"From hearing the whole of Mr. Wright's testimony, did it cause any impression on your mind as to whom the money belonged to?" "Yes, sir."
"State what that impression was." "My opinion was it was Mr. Wright's money."
Re-direct examination. "Which Mr. Wright's?"
"Mr. James W. Wright."
"From what he said about it?" "Yes, sir; I would say from his testimony I would regard it as his money."
The admissibility of this witness's testimony, thus given on cross-examination, as to his impressions or opinions concerning the ownership of the money, is also alleged as error.
The cross-examination of the witness Burks as to the ownership of the money represented by the certificate of deposit issued in the name of R. H. Wright, was quite irregular. His direct testimony was in identification of the certificate and the signature of indorsement of the payee, and as to the payment of the certificate by the bank which had issued it, and related to nothing else. This laid no foundation for a cross-examination as to the real ownership of the certificate or money. However, the testimony of...
To continue reading
Request your trial
-
Higgins v. State
...his recollection from his notes, and testify from memory. Ruch v. City of Rock Island, 97 U. S. 693, 24 L. Ed. 1101;Wright v. Wright, 58 Kan. 525, 50 Pac. 444;Stahl v. City of Duluth, 71 Minn. 341, 74 N. W. 143;State v. Smith, 99 Iowa, 26, 68 N. W. 428;Klepsch v. Donald, 8 Wash. 162, 35 Pac......
-
Higgins v. State
... ... recollection from said notes, and testify from memory ... Ruch v. Rock Island, 97 U.S. 693, 24 L.Ed ... 1101; Wright v. Wright, 58 Kan. 525, 50 P ... 444; Stahl v. City of Duluth, 71 Minn. 341, ... 74 N.W. 143; State v. Smith, 99 Iowa 26, 68 ... N.W. 428; ... ...
-
McElhaney v. Rouse
...making them they were correct. (20 Am.Jur., Evidence, § 946, p. 798; City of Garden City v. Heller, 61 Kan. 767, 60 P. 1060; Wright v. Wright, 58 Kan. 525, 50 P. 444; Mallinger v. Sarbach, 94 Kan. 504, 146 P. 1148; Anness Supply Co. v. Case, 116 Kan. 520, 227 P. Appellant next contends the ......
-
The Atchison v. Osborn
... ... The ... value of testimony taken and preserved under the modern ... system is well illustrated in Wright v. Wright, 58 ... Kan. 525, 50 P. 444, where it was held that "an official ... court stenographer who has correctly taken the testimony of a ... ...