128 Minn. 525 | Minn. | 1915
John Lamont owned a 15-acre tract of land in Le Sueur county and on November 6, 1905, executed a mortgage thereon to defendant Dressel, to secure $75 and interest. The mortgage was assigned to defendant William II. Lamont and was foreclosed by him in De
• If the findings of the trial court are sustained by the evidence, and, if there was no prejudicial error in admitting or excluding evidence, the decision was correct and the order appealed from must stand. But it must be reversed, if the evidence is insufficient to sustain the finding that John Lamont and Louisa Lamont were husband and wife at the time the mortgage Avas executed, or the finding that the tract was their homestead. The same result must follow, if there was prejudicial error in admitting or excluding evidence on the material issues.
We regard the evidence as plainly sufficient to sustain the findings assailed, but it is not conclusive. There was a sharp controversy, especially on the question of the marriage, and the court might have decided either way. It is therefore necessary to consider the claims of error in .the admission of testimony.
1. The first claim of error is based on these facts: The trial court received in evidence, over the defendant’s objection, the judgment-roll, consisting of the pleadings, decision and judgment, in an action brought in 1899 by one Brossard against John Lamont and Louisa Lamont. That action was to determine the adverse claims of the defendants to a 110-acre tract of land, not including the land involved in the instant case. The defendants answered separately, each claiming that 80 acres of the tract was their homestead, that they were hus
Was this judgment admissible as evidence to prove the fact of marriage in the present case? Defendants here were not parties to the former suit. The only parties to that action were Brossard and the Lamonts; it was the ordinary statutory action to determine the adverse claims of the named defendants in a particular tract of land. Its object was not to adjudge the status of the Lamonts as being married or single. Whether they were married or not became an essential issue in the case because on that issue depended the rights of one or both of the defendants in the land. No one interested in that issue, the marriage status, was made a party to the case, either by name or as unknown parties, except Brossard and the Lamonts. It was not, particularly as to the issue of marriage, an action in rem, in which the judgment “renders the thing adjudicated upon ipso
Our conclusion is that the judgment in the Brossard case was not
We are unable to say that the trial court’s decision was not influenced by the evidence. The record strongly indicates that it was. The error must therefore be held prejudicial.
2. There are other questions that should be disposed of in order to guide the court below on another trial. The first of these is whether it was error to receive in evidence the depositions of plaintiff Louisa Lamont and two other witnesses over the objections that these witnesses refused to answer material questions put to them on cross-examination. The questions which plaintiff, on the advice of counsel, refused to answer were whether she had ever been married since leaving Lamont, whether she was married to a certain man on a certain date and whether she did not live with still another man as his wife at another time after leaving Lamont. Plaintiff’s two witnesses, whose testimony on direct tends to show a marriage between plaintiff and Lamont, refused on cross-examination to answer whether or not plaintiff was known in the community where she and they lived as the wife of the other man. The evidence sought to be obtained by the questions which the witnesses refused to answer was material, we think. It had a bearing on the issue of marriage. Plaintiff’s refusal to answer may have been justified, as her answers might be self incriminating, but the other witnesses had no legal reason whatever for refusing to answer the interrogatories. There is a conflict of authority as to whether the refusal of a witness to answer a material question asked on cross-examination is ground for suppressing his deposition. Probably the majority rule is that the deposition may be suppressed upon that ground, and perhaps this has been assumed by this court to be the correct rule. McMahon v. Davidson, 12 Minn. 232 (357); Stone v. Evans, 32 Minn. 243, 246, 20 N. W. 149; 4 Enc. Ev. pp. 421, 422, and cases cited. But because the witness may be compelled to testify, and the suppression of his deposition may punish an innocent party rather than the contumacious witness, some courts Tefuse to .suppress on this ground. 4 Enc. Ev. 421, 422; Jones, Ev. § 689. Whatever the correct rule may be in this
3. Witnesses were permitted to testify over objection to declarations of John Lamont, since deceased, tending to show that he claimed the property as a homestead. This was not error. Hayes v. Hayes, 126 Minn. 389, 148 N. W. 125.
The error in receiving in evidence the judgment in the Brossard case necessitates a new trial.
Order reversed.