10 S.D. 620 | S.D. | 1898
Plaintiff seeks to recover from the estate of Thomas H. White, deceased, upon an account for money had and received by him as its treasurer. Defendant denies any indebtedness on account of money had and received by deceased, and alleges a full and complete settlement of all claims and demands existing between the parties made prior to White’s death. Nathan Halle, called as a witness on behalf of plaintiff, testified to a conversation with deceased touching the balance in his hands as treasurer of the company, but was unable to state the amount of such balance without reference to a book wherein the treasurer had kept his accounts with the company. On cross-examination he was asked this question: “Do you remember the amount independently of this book at all?’’ He answered, “No, sir.” Thereupon counsel for defendant, after having identified the late treasurer’s book, offered as part of Halle’s cross-examination a page of the book containing the account referred to by the witness, to which plaintiff objected as “incompetent, immaterial, and not proper cross-examination,” and the objection was sustained. This ruling was clearly erroneous. Where the testimony of a witness in chief is thus based upon, and inseparable from, a memorandum or writing, the opposite party is entitled to such writing as a part of the cross-examination.
When this appeal was' submitted, the court reserved its ruling upon respondents motion to strike out the bill of exceptions. Appellant’s motion for a new trial was made upon a bill of exceptions to be settled and certain affidavits. Her notice of intention unnecessarily specified the particulars in which the evidence was alleged to be insufficient, and the particular errors of law relied upon. When the bill of exceptions was settled, a copy of the notice of intention was incorporated into and made a part of it. This was a substantial compliance with the statute. If the page of the settled bill of exceptions containing the required specifications also contained the language of appellant’s notice of intention, the bill was not thereby rendered invalid, any more than was the notice of intention by containing the superfluous specifications. Respondent’s motion was not well taken. The judgment is reversed, and a new trial ordered. , .