Baylees v. Reed

THOMAS, J.

By this action plaintiff seeks to recover $2,354.92 from the defendants, executors of the estate of Edwin Ferris, deceased, for work, labor, and services performed and supplies furnished to said Ferris, at his special instance.

The answer of defendants to plaintiff’s third amended complaint, after admitting formal parts only, denied each and every material allegation thereof, and set up an alleged agreement under and by virtue of which plaintiff performed the work and furnished the materials, etc., for which he now seeks pay, asserting that said decedent, Ferris, had paid plaintiff in full for all said service. We think it unnecessary to recite in detail the terms of this alleged agreement. The case was tried by the court without a jury. Findings were expressly waived. Judgment went for plaintiff in the sum of $102.92. There was no motion for a new trial. The appeal is from the judgment, by the so-called “alternative method.”

We have read the entire record, consisting, as it does, of the clerk’s transcript and reporter’s transcript, also appellant’s opening brief and respondents’ answering brief, from which it appears that both parties hereto seek a reversal of the judgment.

Appellant in his brief says: “Under section 4% of the constitution of the state of California, and when it appears from the whole of the record in a case on appeal that substantial justice should be done, the appellant asks this appellate court, without having to undergo the expense and necessity of another trial herein, that this court find for plaintiff the amount which is justly due him in this case.”

[141]

Much as we might desire to comply with the foregoing interesting request, the answer is that the court is without jurisdiction to grant it. (Sec. 4, art. YI, Const.)

[1]

A large portion of the amount claimed by plaintiff as aforesaid was for the services of his wife as nurse for deceased at the latter’s special instance and request, and in order to prove the allegations of his complaint as to such services, plaintiff offered his wife, Minnie E. Bayless, as a witness in his behalf, whose testimony, if received, would have tended to show such allegations to be true. To the testimony of this witness the following objection was interposed: “We object to this witness testifying as to the transactions had with the decedent on the same ground, that of section—subdivision 3 of section 1880 of the Code of Civil Procedure. This witness is not, of course, the nominal party, but the section is broader than to exclude nominal parties—it excludes not only parties or assignors of parties, it also includes—excludes persons in whose behalf the action is prosecuted. Now, of course the testimony has not progressed far enough to show, but the pleadings indicate so clearly the nature of the claim being presented against this estate, it is for services rendered, a larger part is a claim for services of this witness, as a member of the community of which she and the plaintiff are members, and by the same reasoning and' on the same theory the testimony of this witness is also incompetent.” This objection was at first overruled, but later, and after the witness had testified fully, the ruling, so far as it relates to that portion of the witness’ testimony in reference to plaintiff's claim for her services as nurse, was set aside, and the objection thereupon sustained. It is claimed by appellant that this ruling was erroneous, and we think the contention must be sustained.