168 N.W. 754 | S.D. | 1918
Lead Opinion
This action was instituted to recover possession of certain live stock and1 household- furniture. There wias verdidt and judgment fo-r plalihtiff/ from which defendants appeal.
Respondent claimed1 to he t-he owner of the property in question, and at the -trial, to sustain her claimi of ownership, went upon the stand and- testified as- a witness in her oiwn behalf. On direct examination she was asked; the question, “who -was the owner of this cow at the time of the commencement of this, action ?” AppeE lants’ counsel objected to the question on t-he ground ¡that the witness was -incompetent to testify as to her ownership of the property under section 486, C. C. P., -and asked leave to) -examine the witness as to her competency under the 'statute, which was granted. Whereupon appellants’ -counsel said, “Let her answer the question.” The answer -was, “I was.” Then appellants’ -counsel -interrogated the witness a-s follows:
“S-arali, you say that you .are owner. D-i-d you mean to say that you got this -cow from jour mother? A. Yes. Q. Your m-other gave her to you? A. Yes. Q. Your mother is dead? A. Yes.”
Appellant -then moved to strike the an-sw-er f-or the reason that she had not shown herself to .be qualified to testify as to ownership under section 486. This -motion to strike -was overruled. It is now
We are of the view that the -court committed- no error. We are of the opinion that the respondent was qualified to testify as to' ownership so long -as she herself -did not testify as to matters com s-ti-tutimg a transaction -between herself and her deceased mother. -She had tire perfect -legal right to substantiate her -cause of action toy ¡proper evidence, and to submit testimony as to her ownership, and to -submit her ■ own testimony -as ta ownership, -based upon th-e testimony of others who -were -competent to -testify. The question -of -onoership -s-uola a-s was propounded -to the -witn-ésls -in this1 -case seeks to identify an-d -connect the plaintiff’s title, -Or ownership, with the -property which is the subject of the action, and w.-as' material evidence flor the purposes of ■such 'identification, raither than probative evidence of .abstract ownership. Respondent had the right to answer the qu-esti-on -asked her toy her counsel. Hawley v. Bond, 20 S. D. 215, 105 N. W. 464; Hess v. Railway Co., 30 S. D. 538, 139 N. W. 334. She could not, however, have supported -her answer -by testimony ¡that she had1 been- given the .cow by her mother. But it w-as incumbent upon her, just as she dii-di .in this action, to introduce the testknttiy- of other competent witnesses showing -the facts and circumstances of her ownership.
After careful consideration of all the evidence submitted, w-e are of the view -that ¡the same -is -sufficient to sustain- a verdict ; whether tine -property in question .was given to respondent, by her -mother, an-d whether -delivery was made, were -purely questions of fact -to be -decided by the jury on the -evidence and .instructions of the court. Other assignments of error relating- -to- tine reception an-d rejection of -testimony are made, tout w-e -are o-f the view that no prejudicial -error exists in relation thereto-.
Judgment and- order appealed from ¡are affirmed.
Dissenting Opinion
(-dissenting). The fact of -ownership in this case is plainly a -conclusion -o-fi the witness -drawn from- transactions- with her deceased-mother, as to which transactions the- majority opinion as well -as th-e statute ’declares her incompetent t-o testify.
The majority conclusion, life founded upon- the rule -announced toy this court in Hawley v. Bond, 20 S. D. 215, 105 N. W. 464. T-h-e precise point 'decided in -that -case -was that 'the question as to- ownership in that case called for the statement of -a fact, and1 not cf an
