185 P. 1070 | Nev. | 1920
Lead Opinion
By the Court,
after stating the facts:
The several assignments of error may be grouped and considered as one, namely, that the trial court, in viola-tion of law, allowed the defendant to testify to a transaction when the other party is dead. Rev. Laws, 5419.
Counsel for respondent urges upon us not to consider the assignment of error because it is not in conformity with the statute. Stats. 1915, p. 164. We are of the opinion that the alleged error is sufficiently designated and must be considered.
Upon the whole case we are satisfied there was sufficient competent evidence to warrant the verdict. We therefore conclude to affirm the order denying to plaintiff a new trial.
Rehearing
On Petition for Rehearing
By the Court,
It is urged that the note sued on was in fact and truth a gift from the defendant, Echave, to his daughter and plaintiff Bengoa. If this be true the weight of authority has established that one cannot make his own note the subject of a gift to such an extent that it can be enforced by the donee against the donor in the latter’s lifetime, nor against his estate after his death. 1 Dan. Neg. Inst. (6th ed.), sec. 180; 3 R. C. L. 937.
Had the record disclosed positively that the note was a gift, the plaintiff would have been spared criticism by this court simply holding that upon his own showing plaintiff had no cause of action.