Speer v. Smith

163 P. 979 | Or. | 1917

Mr. Justice Harris

delivered the opinion of the court.

1. The court ruled correctly in setting aside the judgment and granting a new trial. Prejudicial error was committed in limiting the cross-examination of Lyle B. Speer. On direct examination the plaintiff said that he was the owner of the note. He also identified the note and the written assignment of the note and mortgage and explained that the written assignment “is a transfer of the note to me.” Arguing to the court that “this is fraud, we have a right to prove the circumstances and especially the knowledge of this witness” the defendants attempted on cross-examination to inquire about the circumstances of the assignment and to ascertain whether the defendant had knowledge of the alleged fraud. The plaintiff objected saying “that this is their case to make out a proof of fraud. ’ ’ The court sustained the objection and allowed an exception and at the same time suggested that the defendants could call the plaintiff as their own witness.

The direct examination opened the doors to the inquiry sought to be made by the defendants and while it is not necessary to relate the whole record it is enough to say that under all the surrounding circumstances the limitation placed upon the right of cross-examination was especially prejudicial to the defendants. Lyle B. Speer was not a mere 'third party, but he was the plaintiff in the action. He alleged and the defendants denied that he owned the note. He alleged and they denied that the note had been transferred to him. They charged and he denied that the transfer was a sham and only one step in a scheme to defraud defendants. He testified in general but nevertheless comprehensive language that the note had been transferred to him and that he owned it; and the defendants were entitled to ascertain the circumstances of the transfer by cross-examination. Plainly, the cross-examination attempted by the defendants would have been as to matter stated in direct exarm ination: Section 860, L. O. L.

2. The cross-examination is not limited to the exact facts stated on the direct examination bnt if it is connected with the direct examination the cross-examination may extend to matters tending to limit, explain or qualify the facts stated on direct examination: Ah Doon v. Smith, 25 Or. 89 (34 Pac. 1093); Maxwell v. Bolles, 28 Or. 1, 6 (41 Pac. 661); Oregon Pottery Co. v. Kern, 30 Or. 328, 331 (47 Pac. 917); Kenny v. Walker, 29 Or. 41 (44 Pac. 501). As stated in Sayres v. Allen, 25 Or. 211, 214, 215 (35 Pac. 254):

_ “Within the subject matter of the direct examination, a free range should be allowed in conducting ’ ’—

the cross-examination, especially when the person examined is a party to the litigation.

3. Assuming, without deciding, that where a judgment is rendered after a trial by the court without a jury, the authority of the court to grant a new trial is no greater than nor different from the authority exercisable after a trial by a jury, nevertheless, the order setting aside the judgment was correct even though the power of the court be measured by the rules governing a motion for a new trial after a judgment on the verdict of a jury. Under all- the circumstances found in the record the rights of the defendants were substantially prejudiced when the court prevented the attempted cross-examination. By granting the motion for a new trial the court merely corrected a reversible error and avoided the necessity of an appeal: De Vall v. De Vall, 60 Or. 493 (118 Pac. 843, 120 Pac. 13, Ann. Cas. 1914A, 409, 40 L. R. A. (N. S.) 291); Smith & Bros. Typewriter Co. v. McGeorge, 72 Or. 523, 525 (143 Pac. 905); Rudolph v. Portland Ry. L. & P. Co., 72 Or. 560, 570 (144 Pac. 93, 7 N. C. C. A. 887, note); Frederick & Nelson v. Bard, 74 Or. 457, 461 (145 Pac. 669); McGinnis v. Studebaker Corp. 75 Or. 519, 525 (146 Pac. 825, 147 Pac. 525, L. R. A. 1916B, 868); Delovage v. Old Oregon Creamery Co., 76 Or. 430, 435 (147 Pac. 392, 149 Pac. 317); Pullen v. Eugene, 77 Or. 320, 325 (146 Pac. 822, 147 Pac. 768, 1191, 151 Pac. 474); Brewster v. Springer, 79 Or. 88, 89 (154 Pac. 418); Wakefield v. Supple, 82 Or. 595 (160 Pac. 376).

The order setting aside the judgment and granting a new trial is affirmed. Affirmed.

Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Burnett concur.