29 Iowa 458 | Iowa | 1870
Before the trial of the case was commenced defendant made application for a continuance on account of the absence of a witness. He set out in his affidavit supporting the application the facts he expected to prove by the absent witness. The plaintiff admitted that the witness, if present, would testify to the facts as alleged in the affidavit. Upon the trial the affidavit, or such part of it as contained the statement of facts expected' to be proved by the absent witness, was read in evidence.
The evidence was improperly admitted. The affidavit, by admission of the plaintiff, was taken and considered as embodying the witness’ evidence. The credibility of a witness can be impeached by proof of contradictory statements, only after , laying a proper foundation by asking the witness in reference to the time and place thereof, etc. State v. Shanahan, 22 Iowa, 435; 1 Greenl. Ev. § 462; Strunk v. Ochiltree, 15 id. 179; Morrison v. Myers & Turner, 11 id. 538; Samuels v. Griffith, 13 id. 103; State v. Rhul, 8 id. 449. It may be said, that, in the case before us, it was impossible to have laid such a foundation. That is quite true, but it does not change the rule. To disregard the rule in a case of this character would be most unfair toward the witness and operate to defeat the ends of justice. The reason of the rule operates in this case as in all others, namely : the witness, probably, upon his attention being called to the statements, could give some explanation thereof. To enforce the rule in a case of this character can be no hardship upon the parties admitting affidavits to be read in place of the evidence of witnesses. If impeachment is necessary to the ends of justice in these cases, they must allow the evidence to be brought before the court in a manner that will permit it. The judgment of the circuit court must be
Reversed.
