Brooks v. Crosby, 22 Cal. 42

Brooks v. Crosby

22 Cal. 42 | Cal. | 1863

Lead Opinion

Cope, C. J. delivered the opinion of the Court—Norton, J. concurring.

This is an action to recover of the defendants the possession of twenty acres of land in the City and County of San Francisco. The complaint alleges that on a certain day the plaintiff was seized and possessed of the land in question, and that the defendants entered and ousted him. The answer denies the allegations of the complaint, and sets up the Statute of Limitations.

On the trial the plaintiff relied upon the prior possession of one Foley, and others, under whom he claims. The case was tried by a jury and the plaintiff obtained a verdict, and we are asked to review the evidence, which is claimed to have been insufficient to justify the action of the jury. On this point it is only necessary to say that the evidence is of such a character as to preclude interference on our part; it is voluminous and conflicting, and we cannot undertake to say that the jury arrived at an erroneous conclusion.

*50The objection to the deposition of Welch is untenable. The deposition was taken in another case, and there was a stipulation that it should be used on the trial “ with the same force and effect, and subject to the same exceptions and objections in all respects as if taken in this case.” When the deposition was offered it was objected that the witness was incompetent from interest, but we regard the stipulation as a waiver of this objection. The effect of the stipulation was to place the deposition upon the same footing as if it had been taken in the present case, and it is a settled rule that a party who appears at the taking of a deposition, and examines the witness without objecting to his competency, cannot afterwards interpose the objection. We understand the stipulation as reserving only such “ exceptions and objections ” as could properly be taken when the deposition should be offered in evidence.

There is nothing in the point that the Court erred in refusing to strike out the testimony of the witness Shear. His interest, if he had any, appeared during his direct examination, and the motion to strike out was not made until the defendants had cross-examined him. Of course, it was made too late, as the defendants could not, knowing the interest of the witness, take their chances of a cross-examination, and subsequently avail themselves of the objection to get rid of the evidence.

The point as to the testimony of Harkness only goes to the exercise of a discretionary power by the Court, and is not a matter for revision on appeal.

The only additional points relate to the action of the Court in giving and refusing instructions. We are of opinion that the case was fairly submitted to the jury, and that the record discloses no error for which the judgment should be reversed. It is possible that instructions were refused which could properly have been given, and that some of those given are subject to verbal criticism. On the whole, however, we think there is no substantial ground of objection, as the question for the jury was a very sinqple one, and depended entirely upon the weight of evidence.

The judgment is affirmed.

Rehearing

On rehearing Cope, C. J. delivered the following opinion—Norton, J. concurring:

*51The petition for a rehearing in this case is denied. Welch testified in regard to his interest when his deposition was taken. He stated that he had formerly owned a portion of the property, but had sold it. He so stated both on his direct and cross-examination. The fact that certain deeds were afterwards given in evidence, showing Ms previous ownership, was not sufficient to exclude the deposition.

The point in regard to the testimony of Shear is not well taken.

The petition is demed.