Etchemende v. Stearns (1872) · DecisionDepot

Etchemende v. Stearns

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

California Supreme Court Jul 1, 1872 No. No. 3,026Published

Before: Rhodes

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Holding. The court held that affidavits and an answer from a prior, separate case are inadmissible as evidence to prove the existence of a partnership between the parties in the current action.

Issues

Whether affidavits from a prior case are admissible to prove a partnership when the affiants are available to testify.
Whether an answer filed in a prior case is admissible against a party to prove a partnership.

Disposition. Reversed and remanded

Quotations verified verbatim against the opinion

“We cannot conceive of any principle which would justify their admission under the circumstances of this case.”

“The answer of Turner, which was filed in the case of Stearns v. Turner, was not admissible as against Stearns to prove the partnership.”

Synopsis

Affidavits not Admissible in Evidence.—On the trial of an action in which the plaintiff sues two defendants as partners, and one of them denies the partnership, the plaintiff cannot, for the purpose of proving the partnership, introduce in evidence affidavits of the defendant who admits the partnership, and of other persons made for the purpose of dissolving an attachment in another action between the two defendants, it not appearing but what the persons who made the affidavits were living and within the jurisdiction of the Court, and competent witnesses.

Evidence to Prove Partnership.—A party who sues two persons as partners, one of whom answers, denying the partnership, cannot, to prove the partnership as against the defendant denying it, introduce in evidence an answer of the defendant admitting the partnership, filed in another case between the two defendants.

By the Court, Rhodes, J.: Eor the purpose of proving the alleged partnership between Stearns and Turner, the Court Commisssioner admitted in evidence, against the objection of the defendant, a number of affidavits which had been obtained by Turner, and filed in the case of Stearns v. Turner, for the purpose of dissolving an attachment. The main purpose for which they were used in that case, was to prove the principal point in issue in this case—the partnership between Stearns and Turner—which is affirmed by the latter, and denied by the former. We cannot conceive of any principle which would justify their admission under the circumstances of this case. Eor aught that appears in the case, all the persons who made those affidavits 'were living and within the jurisdiction of the Court, and in every respect competent as witnesses in this case.

The answer of Turner, which was filed in the case of Stearns v. Turner, was not admissible as against Stearns to prove the partnership. (Coll. Part., Sec. 772.)

Judgment and order reversed, as of the day of the submission of the cause, and cause remanded for a new trial.

Etchemende v. Stearns

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