31 Colo. 155 | Colo. | 1903
delivered the opinion of the court.
A judgment was rendered in the county court against the plaintiff in error in the sum of $125.00. We shall consider those assignments of error only which relate to the refusal of the court to permit certain of the witnesses to testify. At the trial a rule was entered excluding the witnesses while others
“The prevailing doctrine is that the violation of such an order by witnesses will not deprive the party whose witness he is of the benefit of his testimony, if the party himself is without, fault. But where the order has been disobeyed by the consent or procurement of the party seeking to use the witness, the court may, in the exercise of a sound discretion, refuse to receive the testimony.”—Kelly v. Atkins, 14 Colo. App. 208.
Under some circumstances, however, where close relationship exists between the witness and the party calling him, it is incumbent upon the party to show that he is without fault; and in the absence of such showing it is within the discretion of the court to exclude the testimony.—Hennessey v. Barnett, 12 Colo. App. 254.
In this case it does not appear .that the court, in the exercise of its discretion, excluded the testimony upon a showing, but the testimony' was excluded solely because of the violation of the rule by the witnesses. This is not in accordance with the doctrine as announced by the court of appeals, nor as supported by the various text-writers upon the subject. It is stated by Wharton, in his work on Evidence, speaking on the subject of separation of witnesses, that “Whenever sufficient ground is laid for the application, the judge may, at his discretion, order such a separation of witnesses as may prevent those not yet examined from hearing the testimony
The court erred in not permitting the witnesses to testify, although they had violated the order of court, and for this reason we must reverse the judgment. The court can, of course, when he has reason to suspect that a willing witness is present in violation of the order, to obtain instructions from the witness upon the stand, exclude "his testimony if the party calling him procured the witness to violate the rule, or connived at it; but in the absence of anything in the record showing such conduct on the part of the
An appearance was entered by counsel' but no brief was filed in support of the judgment and we have assumed that he has conceded the position taken by the plaintiff in error.
The judgment is reversed.
Reversed.