King v. Haney

By the Court, Belcher, J.: The defendant Louderback claimed title to the premises in controversy, through a deed made to him by one Judson Baldwin, who, it was admitted, died July 19th, 1863.

Upon the trial, the plaintiff King was called as a witness in his own behalf, and, having stated that he first became interested in the property in December, 1857, was asked whom he found on the property in possession at that time, if any one. Counsel for defendants then “ objected to any testimony from Mr. King as to any transactions that occurred previous to 1863, on the ground that the defendant Louder-back is the representative of a deceased person, one Judson Baldwin, who died in 1863, which fact he offered to prove, he being the person from whom defendants claim.”

The Court replied: “We will take the evidence now and the defendant may move to strike it out.” No exception was taken to this ruling, and the witness then testified, without further objection, to transactions occurring both before and after 1863. At the close of his examination-in-chief no motion was made to strike out any portion of his testimony, but counsel proceeded to cross-examine the witness at length. When the testimony was all in on both sides, and the trial, which was protracted, was about to be concluded, counsel for defendants moved the Court “ to strike out all the evidence of plaintiff King, as to facts that transpired previous to the 19th of July, 1863,” and the motion was denied. Judgment having then passed in favor of the plaintiff, the Court below granted a new trial, upon the ground “that an error in law was committed at the trial by admitting James L. King, the plaintiff, while testifying as a witness in his own behalf in said case, to testify to the declarations and admissions of Judson Baldwin, deceased, in [562]opposition to the objection and exception of defendant’s counsel, said testimony being of facts occurring prior to the decease of said Judson Baldwin, and the defendant being a representative of said Judson.”

The correctness of this order is called in question by the appeal.

It was held in Davis v. Davis, 26 Cal. 23, that one of the parties in an action to recover the possession of land cannot make himself a witness in his own behalf on the trial of the action for the purpose of defeating the title of the adverse party to the land in dispute, if the adverse party is the grantee of a person no longer living, and the facts he offers himself to prove transpired before the death of his grantor.