70 Wis. 165 | Wis. | 1887
The appellant alleges as error, first, the refusal of the court to receive as evidence the deposition of the defendant taken before the trial in the manner prescribed by sec. 4096, E. S. There are also three errors alleged in the rejection of other evidence offered by plaintiff, and for receiving certain evidence on the part of the defendant. The fourth error assigned is that the court erred in directing the plaintiff to be nonsuited. We shall content ourselves with the consideration of the first and fourth errors assigned.
Was it error to refuse to permit the plaintiff to read to the jury the deposition of the defendant taken before the trial in the manner prescribed by sec. 4096, E. S. ? It seems to us very clear that the very object of the statute giving a party the right to examine the opposite party, when such examination is made after issue joined in the action, was for the purpose of obtaining evidence in favor of the party seeking the examination and against the party examined.
It is urged by the learned counsel of the respondent that, if it be admitted that the court was wrong in refusing to permit the reading of the examination of the defendant in the first instance, it wTas cured by the fact that the plaintiff called the party and examined him on the trial. ~We do not think this cured the error. The plaintiff knew the party was a hostile witness, and he did not wish to be compelled to put him on the stand to prove his case, when he had his sworn admissions, made at a time when perhaps he would be less liable to be swayed by the exigencies of the situation. Pie had the light to place before the jury in the first instance the statements of the defendant as made on his examination, and if the defendant desired to vary, color, or contradict them he should be compelled to do so as a witness on his own behalf, and not as the witness of the plaintiff.
Upon the merits of the case we are inclined to hold that the learned judge improperly took the case from the jury, upon all-the evidence. It may be admitted that the plaintiff ivas brought to the poor-farm without any authority from the proper officers of the county, and that the defendant was not required by law to receive the plaintiff into the poor-house, or to take care of him there; still the fact remains that he did receive him into his house and did under
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.