21 Colo. 322 | Colo. | 1895
Lead Opinion
delivered the opinion of the court.
Many of the numerous errors assigned involve a review of the judgment upon the evidence. Under the well established practice of this court, no exception having been saved to the final judgment, we are precluded from considering the testimony, either as to its probative force to support the alleged trust, or its sufficiency to sustain the defense of res adjudicala, or the statute of limitations. Patton v. The Coen & Ten Broeke C. M. Co., 3 Colo. 265; Rocky Mountain Nat. Bank v. McCaskill, 16 Colo. 408; Law v. Brinker, 6 Colo. 555; Hochmark v. Richler, 16 Colo. 263; Wray v. Carpenter, 16 Colo. 271; Burnell v. Wachtel, 4 Colo. App. 556.
The contention of counsel for appellant, that this rule is not applicable to equity cases, is answered by several decisions of this court. Among others, see Marshall Silver Mining Co. v. Kirtley, 8 Colo. 108; Blatchley v. Coles, 6 Colo. 82; Rocky Mountain Nat. Bank v. McCaskill, supra.
It remains only to consider those assignments predicated upon exceptions, duly reserved upon the trial, to the admission of evidence, and we are enabled to do this only by indulging in perhaps the unwarrantable assumption that the evidence introduced upon the accounting and not preserved by the bill of exceptions, could not, in its very nature, qualify or affect the evidence so admitted upon the trial of the main issues. These assignments of error challenge, first, the admissibility of any proof under the complaint, because •the alleged trust was void under the statute of frauds. Over
The admissibility of this evidence we do not regard as an open question. This court, in the case of Bohm v. Bohm, 9 Colo. 100, in discussing the counterclaim filed in that case by Magdalena Bohm, the plaintiff here, and which stated in substance the trust set forth in her complaint herein, used the following language :
“ * * * Where a person occupjdng a fiduciary relation to the owner of real estate takes advantage of the confidence reposed in him by virtue of such relation to acquire an absolute conveyance thereof, without consideration, through a verbal agreement, Avhich he promises to reduce to writing; as, for example, that the land conveyed to him is to be held in trust for some legitimate purpose. A refusal, under such circumstances, to reduce the verbal agreement to writing, or to reconvey the land to the real owner, is such an abuse of confidence as to vest a court of equity with jurisdiction to inquire thoroughly into the entire transaction, and to set aside the conveyance, or administer other proper relief.”
Even if the doctrine thus announced is not to be taken as the “ law of the case,” we adopt it as a correct enunciation of the rule applicable to trusts of this character.
Second, the admissibility of the testimony of Ferdinand Bohm is further challenged because plaintiff, by averring in her replication, and contending upon the trial of the cause, that the superior court had no jurisdiction of the subject-matter of that suit, is estopped from claiming that the evidence of said witness was given under the sanctity of an oath.
It by no means follows that if the superior court Avas with
The third and further objection presented by the record is that the appellee was permitted to testify in her own behalf, the action being one wherein appellant defended in his representative capacity, as executor, etc. She was first called by defendant to prove the execution of a paper filed of record, giving notice of her claim to the property in question. She was then, over defendant’s objection, allowed to testify in her own behalf. Our statute, section 3641, provides “ That no party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein, of his own motion, or in his own behalf * * * when any adverse party sues or defends * * * as executor * * *, unless when called as a witness by such adverse party, so suing or defending.” Gen. Stats. 1883.
It will be seen that the statute prohibits parties to an action from testifying when the adverse party sues or defends in a representative capacity, of their own motion, or in their own behalf, unless called by the adverse party; but when called as a witness by such party, the inhibition of the statute is removed and they become competent to testify as fully as any other witness in the case. Warren v. Adams, 19 Colo. 515.
Affirmed.
Rehearing
ON REHEARING.
Upon rehearing it is urged that we erred in our former opinion in holding that, for want of an exception to-the final decree, we were precluded from considering the sufficiency of the evidence to sustain the defense of res adjudicata, since that defense was not put in issue by the replication, and stood admitted upon the face of the pleadings ; and hence it appeared upon the record proper that the court -had no jurisdiction to render judgment in favor of appellee.
We are not clearly satisfied that the plea of res 'adjudicata relied on conclusively shows an adjudication'in the former suit of the particular cause of action-set forth in the complaint herein, and under the view we take of the matter aá now presented, it is unnecessary to determine that question.
Appellant, upon the trial, and throughout the proceedings in the court below, treated this defense as though it had been controverted, introduced evidence in support thereof, and submitted the issue to be determined as one of fact. Having thus proceeded as though the matter was in issue, it is too late now to raise the objection for the first time that, in fact, this defense was not traversed; Quimby v. Boyd, 8 Colo. 194.
In that case the answer contained new matter that, if not traversed by the replication, entitled defendants to judgment; but the defendants having submitted the cause to trial upon the evidence as though issue were joined, this court held that “ by introducing evidence to prove the affirmative allegations of their answer they treated them as controverted and put in issue; and it is now too late to raise the
We think that upon the record before us we were correct in holding that the defense of res adjudicada ivas determined upon the evidence introduced, and no exception having been taken to the final decree, we are precluded from considering the sufficiency of that evidence, and therefore adhere to our former opinion.
Affirmed.
