119 Minn. 389 | Minn. | 1912
This action was brought in the district court of the county of Rice to enjoin the defendant from obstructing an alleged highway over his land. A controlling issue on the trial of the case was whether there was a public road at the locus in quo. This question was submitted to a jury, and a verdict returned that there was such a highway. The other issues were determined by the trial judge in favor of the plaintiff, and judgment was ordered for it. Thereupon the defendant made a motion for a new trial on the ground of an alleged error of law committed on the trial, which was duly excepted to. The motion was denied, and the defendant appealed from the order denying his motion.
It appears from the record that no legal proceedings were ever had in reference to the laying out of the alleged highway, and that, if in fact the locus in quo was a public highway, it was such by reason of a dedication thereof by the owner of the land. The plaintiff called a witness, Peter Orth, who gave material testimony tending to show such a dedication. On his cross-examination he was asked as to his feeling toward the defendant, whether it was friendly or not. The witness answered: “I don’t like his way of dealing; that is all the feeling.” On his redirect examination he was asked and permitted to answer, over the objection and exception of the defendant, a question as follows:
“Q. If your feeling is unfriendly, why is it unfriendly ?”
“A. I can do it in five minutes. It is about 1903 he owed me some money. Well, I was trying to get the interest from him. I got some the second year, and that was all I got in six or seven years. Well, the thing went on. I used to send him letters, and I used to go to his house. I watched every time he came to town. He would slip out on the road when he noticed me coming. Well, I didn’t get nothing out of him at all. I gave the notes to the bank. He didn’t pay any attention to the bank. When it was getting a long delay, I gave it— I gave it to a lawyer, with object to begin action against him. That was two years ago last spring. Well, the next thing, I think, the statement that he made that he didn’t owe me a dollar; that he had every dollar paid, and the last payment was made, and he had witnesses and he paid it the last time. He didn’t have it paid. I had the note, and he had no receipt, and still he had the nerve to say he had paid every dollar. At the last term of court I got a judgment against him for over $400. He never appeared; at last I had to sue him to get the money out of him.”
It is urged in effect by respondent in this connection that, inasmuch as the record does not purport to contain all of the evidence given on the trial, there being no settled case, it must be presumed that the error, if any, was harmless. This is not a correct statement of the law. See 2 Dunnell, Minn. Digest, § 7180. But, were it otherwise, it would not be applicable to this case; for the court’s certificate to the bill of exceptions negatives any presumption that there was any evidence other than as therein stated. The bill of exceptions is sufficient to present the question whether the error was prejudicial. The record shows that the testimony of the witness Orth and that of the defendant as to the vital issue in the case, the dedication of the alleged public way, was conflicting, and that the natural tendency of the evidence erroneously received was to prejudice the substantial rights •of the defendant. Whthe a new trial for the erroneous admission of evidence should be granted with caution, and in no civil case where it fairly appears that the error was not prejudicial to the substantial rights of the appellant, yet we are constrained to hold upon the record in this case that the admission of the evidence complained of was reversible error.
Order reversed, and a new trial granted.