117 P. 281 | Or. | 1911
delivered the opinion of the court.
It appears that the intestate, John Morrison, was born about January 13, 1833, at Alva, Scotland, where he lived with Ann Morrison, the mother of Margaret Shaw, a witness herein, until 16 or 17 years of age, when he came to America; that, until he was about 22 years of age, he resided with the family of James Morrison, at Brook-field, Ohio, when he came to the Pacific Coast; that about 1865 he settled in the Grahde Ronde Valley, Union County, and died, without having been married, in Portland, Oregon, January 31, 1905.
It is asserted on the part of plaintiff that decedent was the illegitimate son of James Morrison and one Catherine France; that Catherine France afterwards married one
At the trial of the cause, objection to the reading of the deposition of Mrs. Margaret Shaw was made by counsel for the defense, for the reason that the infirmity of the witness, prevailing on May 19, 1908, when the deposition was taken, had not been shown to continue to the time of the trial. Section 851, L. O. L., provides that when a deposition is taken under subdivision 4 of Section 837, “before the same can be used, proof shall be made that the witness * * still continues * * infirm.” Carter v. Wakeman, 45 Or. 427 (78 Pac. 362). The testimony of Mrs. Shaw’s 'attending physician, as well as that of another competent physician, taken at the time of the last trial of the cause, clearly shows that she had been receiving medical attention for about six weeks, and that both physicians saw Mrs. Shaw the morning prior to the commencement of the trial; that she was between 70 and 75 years of age, very nervous, and easily excited; that she was unable to walk up the stairs, and it was believed probable that if subjected to an examination on the witness stand she would undergo a collapse and suffer therefrom. There is also evidence tending to show that at and prior to the time of the first trial- of the case she was infirm and suffering from acute disorders.
At the conclusion of plaintiff’s evidence, counsel for defendants moved the court for a nonsuit, mainly for the reason that plaintiff had failed to show by any competent evidence that John Morrison was an illegitimate child. This motion, to a large extent, was based upon the question of the admissibility of the depositions of John Richie and Margaret Shaw, and the ruling thereon practically determined the motion for nonsuit. Tested by the rules laid down, after much painstaking research by Mr. Justice Slater in the former opinion in this case, there was competent evidence to be submitted to the jury, both in the depositions referred to and the other evidence, and there was no error in the court overruling the motion.
The statute of this State, providing for the escheatment of property, is as follows:
“When any person shall die intestate without heirs, leaving any real, personal or mixed property, interest or estate in this State, the same shall escheat to and become the property of this State.” Section 7363, L. O. L.
Two juries, by their verdicts, have found that John Morrison, deceased, was the illegitimate son of Catherine France, and it is not shown that he was legitimatized by the subsequent marriage of his father and mother.
Section 7351, L. O. L.: “An illegitimate child shall be considered an heir of its mother, and shall inherit or receive her property, real or personal, in whole or in part, as the case may be, in like manner as if such child had been born in lawful wedlock; but such child shall not be entitled to inherit or receive, as representing his mother, any property, real or personal, of the kindred, either lineal or collateral, of such mother; provided, that when the parents of such child have formally married, and lived and co-habited as husband and wife, such child shall not be regarded as illegitimate within the meaning of this act, although such formal marriage shall be adjudged to be void.”
_ Section 7352, L. O. L.: “If an illegitimate child shall die intestate, without leaving a widow, husband or lawful issue, the property, real and personal, of such intestate shall descend to or be received by his mother; but if after the birth of an illegitimate child the parents thereof shall intermarry, such child shall be considered legitimate to all intents and purposes.”
It will be remembered that upon the trial of this cause it was admitted that James Morrison, deceased, was the putative father of the intestate, and the testimony tends to show that the latter never married, which narrowed
This appeal was perfected and the transcript and bill of exceptions prepared after the amendment of November 8, 1910, to Section 3 of Article VII of the Constitution. The provisions of such section of the constitution, as amended, are therefore applicable hereto. Darling v. Miles, 57 Or. 593 (112 Pac. 1084). Under our constitution, the right of trial by jury in all civil cases remains inviolate. Section 17, Article I. In the consideration of no case should this right be abridged. In Wills v. Palmer Lumber Co., 58 Or. 536 (115 Pac. 417), this court, speaking through Mr. Justice Moore, announced the rule governing cases on appeal, since the constitutional amendment referred to, as follows: “Giving to the amendment the liberal construction necessary to effectuate the purposes indicated, we believe a fair interpretation of the altered organic law regulating practice on appeal in this court, demands a careful examination of the entire record of the trial of an action at law, including a transcript of the testimony brought up for review, and any other material matter, and, if the judgment given is found to be such as should have been rendered in the case, an affirmance of the determination of the lower court should follow without adverting to or commenting upon, in a memorandum opinion, any trivial errors that may have been committed. Where, however, it appears from such examination that the judgment complained of should be changed, and it can be determined what adjudication should have been given, the proper entry must be made in this court; but if this cannot be done the judgment should be reversed and the cause remanded for a new trial, or for such other proceedings as may be necessary,
The judgment of the lower court should be affirmed, and it is so ordered. Affirmed.