Adams v. Allen

44 Wis. 93 | Wis. | 1878

Cole, J.

Without regard to the other errors assigned, we think the judgment must be reversed because the court refused to allow the question to the witness Allen to be answered. It is certainly clear that it was competent for the witness to state the facts and circumstances under which he obtained possession of tbe notes, unless he obtained tbem directly from tbe deceased. Stewart v. Stewart, 41 Wis., 624; Page v. Panaher, 43 id., 221. The question did not necessarily relate to any transaction which the witness had had with his father, and the court surely could not know in advance that any valid objection would exist to an answer to it. Suppose the witness had said he obtained the notes from some third party, in the usual course of business, paying a valuable consideration therefor; such an answer would be directly responsive to the question, and competent testimony. The court had no right to assume that the witness would testify about any personal transaction or matter had between him and his father in regard to the possession or title of these notes. And, as it was argued by the defendants’ counsel, the subject matter of the inquiry was legitimate evidence, and, for all that appears, the witness was competent to testify in relation to it. The case comes fully within the doctrine laid down in Stewart v. Stewart and Page v. Danaher, supra, which are decisive upon the point.

It is, however, said by the plaintiffs’ counsel, in justification of the ruling of the court below, that it had been claimed in the opening of the defendants’ counsel on the trial, that the witness had received these notes as a gift from his father the night before he died, and that the question had relation to that matter’, and was therefore excluded. "While we do not doubt that the learned counsel states the facts precisely as they occurred, yet there is nothing in the bill of exceptions to sustain his statement. Of course, we must determine the correctness of the ruling from the record itself. If the witness had been asked to state the facts and circumstances under which he had obtained possession of the notes from his father, whether they were not given him by his father the night before he died, a different question would be presented for consideration. But, as the record now stands, the question asked does not seem to be open to objection, and it might have called out testimony material to the defense. The notes were payable to bearer, and title to them would pass by delivery. The witness might have obtained them from a third party.

The judgment of the circuit court must therefore be reversed, and a new trial awarded.

By the Gov/rt. — So ordered.

ByaN, C. J., and LyoN, J., took no part.