54 Neb. 7 | Neb. | 1898
Stewart sued Demming for damages alleged to have been committed by the animals of the latter upon the cultivated land of the former. In the answer there was a counter-claim, apparently for grain sold and delivered and for work done, but which turned out to be in fact for damage claimed by the defendant to have been done to
It would seem that the case had been begun before a justice of the peace and brought to the district court by appeal. The defendant being on the stand as a witness in his own behalf he was shown a paper and asked: “You may state if that is the bill upon which this case was tried in the lower court.” I-Ie answered in the affirmative, whereupon the paper was offered in evidence, without further proof, and received over the objection of the plaintiff. It appears to be a bill of items of the damages claimed by the defendant upon his counter-claim, and, so far as the proof goes, it seems to have been the bill of particulars of that counter-claim as filed before the justice. There was no proof of the correctness of the items, and the effect of admitting it in evidence was to make an unsworn pleading in the lower court substantive evidence of the facts alleged therein in favor of the party pleading. It requires neither argument nor citations to demonstrate the error of admitting this evidence. It is claimed in support of the ruling that the evidence was merely introductory to further proof which was excluded, and that the exclusion of the other proof cured the error. The further proceedings in this connection were as follows: “You have seen the amended answer that was filed in this court, have you?” “Yes, sir.” “Now you may state how the items in that answer correspond with those that we have just offered in evidence.” An objection was then sustained and an offer made to prove that the answer, which had been lost, contained the same items as the bill of particulars in evidence. Of course this offer was denied. The answer in the district court was no more substantive evidence of its allegations in favor of the party pleading than the bill in the lower court, and the loss of the answer did not make proof of its contents admissible.
Reversed and remanded.