73 So. 329 | Ala. | 1916
Complainants’ counsel, however, insist that the chancellor .erred with respect to the exclusion of the testimony of Mary Lovett, one of the respondents. She testified: “The terms of the trade between my father and Miss Hettie O’Neal were as -follows: My father sold her the two lots for $700, $200 of which amount she was to pay in cash, and she was given credit for $200 which my father owed Mr. O’Neal, the father of Miss Hettie O’Neal, on this same property.”
Complainants objected to the interrogatory itself, and moved to exclude all the words of the answer “except in so far as they • show a balance was due on this same property and unpaid.” One ground of the motion to exclude was, “second, because it is her . opinion or conclusion that the money was owing from her father -to Hettie O’Neal’s father.”
Testimony cannot be excluded on one party’s motion, with a saving clause which preserves for the moment some supposedly beneficial effect of such testimony. Either it must be excluded, ■ or it must remain in evidence. As this motion was framed — and ■ especially in view of the specific objection to the witness’ conclusion that her father owed a balance of $200 on the purchase price - — the movants cannot complain that the chancellor excluded the entire testimony of this witness.
It may be doubted also whether a subordinate phrase, incomplete in itself, and forming part of a complete statement, could be properly separated from its context, by a motion to exclude - the context only. — See Spitzer v. Nassau, etc., Co., 20 Misc. Rep. 327, 45 N. Y. Supp. 682. This, however, we need not now deter- ■ mine.
We find no error in the decree of the chancery court as noted.. It will therefore be corrected, and, as corrected, will be affirmed. The costs of this appeal will be apportioned equally between the; parties.
Corrected and affirmed.