87 Cal. 104 | Cal. | 1890
Lead Opinion
This case was heard in Bank, and decided after being twice orally argued and thoroughly and exhaustively briefed. A rehearing was granted, mainly because it was thought that the court below and this court had not given sufficient weight to a certain letter, written by the respondent’s intestate, containing certain admissions against his interest. This may have been so as to the court below, but it was not so as to the writer of this opinion, who wrote the opinion upon which the case was decided. In opposition to this admission, which was not by any means conclusive against the author of the letter, was the sworn admission of one of the defendants, at least, as a witness in a former case, to the effect that his brother, the deceased, was the owner of the property. It is true that, in the litigation referred to, it was to the interest of the defendant mentioned to establish the fact that the property was the property of the deceased, and that he may have testified falsely in that case in order to shield the same from the claims of other parties against him and his father; but the court below had the deposition containing these admissions before it, and in connection therewith heard the testimony of the’defendant to the contrary in this case, and must have known better than we can know how much weight to give to the testimony of the defendant on both of these occasions, and to the admission contained in the letter above referred to, in the light of such admissions and testimony. Here were opposing admissions by the parties adversely interested. Why should one be considered absolutely conclusive, and the other disregarded? We can see no reason. Nothing more can be said, even if these admissions were the only evidence on the point, than that here was a substantial conflict in the evidence, and this court cannot,
For the reasons here given, and those contained in the former opinion, the judgment and orders appealed from are affirmed.
McFarland, J., Sharpstein, J., and Paterson, J., concurred.
Concurrence Opinion
I concur in the dissenting opinion of Mr. Justice Fox.
The following is the opinion above referred to, rendered in Bank on the 31st of March, 1890:—
A statement of this case will be found in Duff v. Duff, 71 Cal. 513. It was there held that the complaint stated a cause of action; the law relating to the question of the statute of limitations as applicable to an action of this kind was stated, and the cause was reversed for certain errors of law occurring at the trial. The cause was again tried by the court below, without a jury, and findings and judgment rendered in favor of the plaintiff as to the greater portion of the property in controversy, and- in favor of the defendants as to the bal
It is earnestly contended by the appellants that the findings of the court, and especially those relating to the fraud charged and the statute of limitations, were not sustained by the evidence. We have gone over the evidence, and find it to be such that we cannot disturb the judgment on this ground.
Numerous assignments of errors of law occurring at the trial are assigned and extensively argued in the briefs. We cannot undertake to discuss these alleged errors in detail. • They relate mainly to rulings made in the admission and exclusion of evidence. A careful reading of the briefs of counsel and the record has convinced us "that no error was committed in any of these rulings that should reverse the judgment. The cause has been twice tried, once by the jury, and once by the court, and decided each time in favor of the plaintiffs. The last trial appears from the record before us to have been a very full and fair investigation of tbe complicated affairs of this family, so far as it affects the title to this land, and we are satisfied that a correct result was reached.
Judgment and orders affirmed.
Sharpstein, J., McFarland, J., Paterson, J., Fox, J., and Thornton, J., concurred.
Rehearing denied.
Dissenting Opinion
Upon a careful examination of the record in this case upon rehearing, it does not appear to me that the deposition referred to in the foregoing opinion contains a contradiction of the admission made in the letter referred to. I am also satisfied that there was no proper foundation laid for the introduction of said deposition, and that its admission was in violation of the law of the case, as established on the former ‘appeal. (Duff v. Duff, 71 Cal. 513.) It may he that a different judgment would never be reached in the cause; but for the reason stated, and under the rule established in this particular case on the first appeal, I cannot concur in the foregoing conclusion.
