2 Iowa 67 | Iowa | 1855
This- ruling was erroneous. The son was no longer a party to the record, nor in any manner responsible for any judgment plaintiff might recover against the father, or for costs. The plaintiff, by dismissing his suit'as-to the son, became liable for the costs, consequent upon his-having been made a party, and his competency as a witness-was as undoubted, as if he had never been connected with the record. Had there been a joint trial, there is no question but that the son might, on motion, have been released,, for the want of evidence to charge him as a trespasser; and that upon such release, he would have been a competent witness. If so, a fortiori, he would be competent when he is released on plaintiff’s motion, before the commencement of the trial. Wilmarth v. Mountford et al., 4 Wash. C. C, 79; Van Deusen et al. v. Van Slyck et ux., 15 Johns. 223; Moon et al. v. Eldred, 3 Hill, 104, and the very full note to this latter case.
The appellee in his argument insists, that- the witness was not discharged, but was a party to the record at the time of being offered. We, however, can only be governed by the transcript before us, which sufficiently shows the state of the «ase, upon which the foregoing conclusion is predicated. If
Several objections have been urged to the instructions given and refused by the court below. The case must, how■ever, he reversed on the above ground, and as it is manifest and admitted in the argument, that a portion of the'instructions, from some cause, are not before us, we do -not deem it advisable to examine and pass upon those embodied in the record. To do so, without having all the instructions, might in this case, operate unjustly upon the lights of the parties-So far as disclosed, a portion of the instructions, we thmb cannot be sustained. Generally, we may say, that in order to justify the father in the defenee of his-son, or the protection of his property, it is not necessary that such son shall; be in real danger of great bodily harm, or such property be. in actual danger of material injury, -as is assumed in the instructions before us. But if the danger is such as to induce a person exercising a reasonable and proper judgment, to interfere, in order to prevent the consummation of the im jury, it is sufficient.
Judgment reversed.
