Rosenbaum v. Hernberg (1861) · DecisionDepot

Rosenbaum v. Hernberg

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1861Published

Before: Field

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Holding. A defendant in a joint tort action who has not interposed a defense is a competent witness for the plaintiffs under the applicable statute and common law.

Issues

Whether a defendant who has not answered the complaint is a competent witness for the plaintiffs in a joint tort action.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“We have no doubt of the competency of Hernberg. He was clearly competent under our statute; and we are inclined to the the opinion that he was so at common law, especially as he made no objection to testifying.”

Synopsis

In an action against defendants for damages, for conspiring together to defraud plaintiffs of certain goods—the conspiracy being successfully carried out by defendants obtaining and disposing of the goods—H., one of the defendants, made a voluntary appearance but interposed no defense. The other defendants answered and contested the case : Held, that H. was a competent witness for plaintiffs under our statute; and probably so at common law, especially as he did not object to testifying.

Under our statute the plaintiff may call as a witness any one of the adverse parties to the action, where there are several and they are sued as joint tort-feasors. He is not bound to call all if he call one.

Field, C. J. delivered the opinion of the Court Cope; J. concurring.

The only question presented for determination by the record in this case, is whether Hernberg, one of the defendants, was a competent witness for the plaintiffs. The complaint alleges a conspiracy between the defendants to defraud the plaintiffs of certain goods, and that it was successfully carried out by their obtaining and disposing of the property, and asks damages against them all. Hernberg made a voluntary appearance, but interposed no defense. The other defendants answered and joined issue.

We have no doubt of the competency of Hernberg. He was clearly competent under our statute; and we are inclined to the the opinion that he was so at common law, especially as he made no objection to testifying. Under the statute the plaintiff may call any one of the adverse parties to the action where there are several, and they are sued as joint tort-feasors. He is not bound to call all if he call one. (See secs. 392 and 393 of the Civil Prac. Act, as amended in 1854; and secs. 417 and 418; Haddrick v. Heslop, 12 Adol. & Ellis, N. S. 268; Brown v. Marsh, 8 Vt. 310; and Paine v. Tilden, 20 Vt. 554.)

Judgment affirmed.

Rosenbaum v. Hernberg

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