76 Cal. 106 | Cal. | 1888
Julia King died in the city and county of San Francisco on the 8th of April, 1883. The defendant Roach, public administrator, obtained letters of administration on her estate.
The deceased left some money deposited in the Hibernia Savings Bank in her own name; the amount does not appear.
The plaintiff claims that at least a thousand dollars of this money belongs to him. On the 18th of May, 1883, he presented his claim in due form, and duly verified, to the defendant, as administrator, for allowance; but the defendant refused to allow the same, or any part thereof.
At the trial plaintiff expected to be a witness, and was called by his counsel to testify to the material facts going to establish his claim. Under the provision of section 1880 of the Code of Civil Procedure, his proposed testimony was rejected. This ruling of the court is not assigned in the statement as error, and cannot be considered.
Appellant now claims that, “having relied on his right to testify in the cause, he made no provision to sustain his case by other evidence. The fault, he claims, was that of his attorney, in not advising, him of the statute prohibiting him from testifying; and he did not know of this prohibition till too late to find other testimony. The attorney believed that in such a cause of action he could testify. Having been denied this privilege, he was thrown, as it were, hors de combat, and the newly discovered evidence entitled the plaintiff to a new trial.”
The discovery which plaintiff and his counsel made seems to have been one of law rather than one of fact or evidence.
It is sufficient to say, furthermore, that there is nothing in the record to identify any affidavits used on motion for a new trial.
The findings of the court attacked by the appellant are fully warranted by the evidence. Assuming it
Judgment and order affirmed.
Searls, C. J., and McKinstry, J., concurred.