McGeoch v. Carlson

96 Wis. 138 | Wis. | 1897

PiNNEY, J.

While the minutes kept by the justice of the testimony of McGeoch, since deceased, were not admissible as competent evidence to prove what he testified to as a witness on the former trial, the justice, however, was a competent witness for that purpose, and he might use or refer to the minutes of such testimony taken by himself to refresh his recollection. The issue and the interest of the respective parties are the same as on the first trial; the present plaintiffs, as executors, standing in the place of and holding the interest of McGeoch, the deceased plaintiff. It is enough if the second trial is between those who represented the parties at the first trial by privity, in blood, in law, or in estate. The defendant was represented on the former trial by counsel, who had an opportunity of cross-examining the witness. The evidence tendered was clearly competent. It is not necessary that the exact words of the deceased be given. It is enough if the substance of his testimony can be stated. Jones, Ev. §§ 339, 346; Charlesworth v. Tinker, 18 Wis. 633; Zitske v. Goldberg, 38 Wis. 216, 228.

It is urged that there was no evidence of conversion. Both parties claim title to the horse, each denying the right of the other, as appears from the pleadings; and it may well be that the evidence of what McG-eoch testified to on the former trial, tendered and rejected, if admitted, would have supplied any want or defect of evidence of conversion. For these reasons there must be a new trial.

By the Oourt.— The judgment of the superior court is reversed, and the cause is remanded for a new trial.