McDermott v. Mitchell (1874) · DecisionDepot

McDermott v. Mitchell

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

California Supreme Court Jul 1, 1874 No. No. 4,068Published

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Holding. An answer filed in a prior action that was verified by a co-defendant but not by the defendant is inadmissible as evidence against that defendant in a subsequent action. Because this inadmissible evidence was the sole proof offered to support the judgment, the judgment cannot be sustained.

Issues

Whether an unverified answer filed by a co-defendant in a prior action is admissible as evidence against a defendant in a subsequent action.
Whether a judgment can be supported when the only evidence offered to prove a necessary fact is inadmissible.

Disposition. Reversed and remanded for a new trial.

Quotations verified verbatim against the opinion

“the answer filed in the case of Brock v. Mitchell and Root was not admissible in evidence against Mitchell in this action.”

“As to the latter, it was the mere work of the attorney, and, therefore, not admissible as evidence against the client in another action.”

“it being inadmissible-for that purpose, the judgment cannot be supported.”

Synopsis

An Answeb in a Suit as Evidence.—A joint answer of two defendants, signed by their attorney, and verified by only one of them, is not admissible in evidence, for the purpose of proving the allegations therein contained, in an action brought against the defendant who did not sign or verify.

By the Court: 1. The answer filed in the case of Brock v. Mitchell and Root was not admissible in evidence against Mitchell in this action. True, it was the joint answer of Boot and Mitchell in that action, verified by Boot—but not verified by Mitchell . As to the latter, it was the mere work of the attorney, and, therefore, not admissible as evidence against the client in another action.

2. We understand the answer in the action of Brock v. Mitchell and Root to have been the only evidence offered to prove that the defendant procured the plaintiffs to execute the undertaking on appeal, or to prove that Mitchell directed or requested Middleton to take an appeal in the Ellsworth case, and it being inadmissible-for that purpose, the judgment cannot be supported.

Judgment and order denying a new trial reversed, and cause remanded for a new trial.

McDermott v. Mitchell

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