Second Ward Savings Bank v. Shakman

30 Wis. 333 | Wis. | 1872

Lyow, J.

I. The defendants were clearly entitled to first introduce their proofs and to open and close the argument. The answers admitted every traversable averment of the complaint, and in the absence of any testimony, the plaintiff would have been entitled to judgment, upon the pleadings, for the amount of the note. The only issue was that made by the new matter stated "in the answers by way of avoidance, and the defendants bad the affirmative of that issue, and were entitled to all of the rights necessarily resulting therefrom.

Their claim in that behalf should, therefore, have been allowed. But it does not necessarily follow that, because the court erroneously denied such claim, tbe judgment must be reversed. In the case, of the Central Bank of Wisconsin v. St. John, 17 Wis., 157, the Chief Justice says, that a mistake in. this respect is no cause for a new trial, unless injustice is shown to have resulted from it, (p. 166). Such is, doubtless, the correct-rule. It cannot be reasonably inferred-from anything contained in the record of this case, that the defendants were in any manner prejudiced or injured by the . error complained of. It follows that the judgment should not be reversed because of such error.

II, Did the.court err by allowing the witness, Auer, to answer the question propounded to him on his direct examination, by the plaintiff’s counsel, as to whether the note in suit was entered in. the bill book of his firm, kept and produced by him, and after the witness had .testified that all notes discounted by his firm were entered therein ?

Before the question.eoncerning the contents of the bill book was put to the, witness, he had given testimony tending to show that his firm did not discount the note. The testimony elicited by that question was no part of the res gestae, and if admissible at all, it was only admissible because it tended to corroborate the witness, and thus to strengthen his testimony on the material point in issue in the action. The precise question to be determined is, therefore, whether, for the purpose of increasing or strengthening the credibility of a witness in the estimation of. the jury, the party calling him may show that such witness omitted to do certain things, which, had he done them, would tend to show that his testimony is untrue. The principle would doubtless be the same, were it proposed for the same' purpose, and under the same circumstances, to prove that the witness did certain acts, the doing of which was consistent "with his testimony. As, for example, had the proposition been to prove by the witness that about the time the note was discounted, he stated to divers persons that his firm did not discount it, but only acted as the agents of the defendant Herbst, in procuring the plaintiff to do so.

Of course, on cross-examination it is competent to interrogate tbe witness as to wbat be bas said or done or omitted to do, in regard to tbe transactions concerning wbicb be bas given testimony, and this for tbe purpose of laying a foundation for tbe introduction of impeaching testimony, should tbe witness testify untruly. But we know of no rule of evidence, and tbe learned counsel for tbe plaintiff bas failed to direct our attention to any such rule, wbicb permits a party on tbe direct examination of bis own witness, to show acts or omissions of tbe witness wbicb are not of tbe res gestae, merely for tbe purpose of strengthening bis testimony with tbe jury. 'Without multiplying illustrations, it is not difficult to foresee that tbe adoption of such a rule of evidence would lead to great inconveniences and even absurdities in practice, by opening a door for tbe introduction of numberless side issues in all litigated trials, wbicb are now excluded by tbe application of wholesome and logical rules.

We think that tbe testimony under consideration should have been rejected, and because we cannot say that tbe defendants were not injured by it, there must be a new trial.

It is urged by tbe counsel • for tbe plaintiff that bad not tbe question objected to been asked by them, tbe jury might have inferred that tbe note was entered in tbe bill book, greatly to tbe disadvantage of tbe plaintiff. I think that bad tbe learned counsel tendered tbe book to tbe opposing counsel for examination, and to be put in evidence by them if they thought proper to do so, tbe difficulty wbicb they suggest would have been obviated.

By the Court — Judgment reversed and venire de novo awarded.