Myers v. Reinstein

Thornton, J. This action was brought to establish a resulting trust in a parcel of land claimed to have been purchased by S. H. Collins and M. Reinstein—the latter, testator of defendants O. Reinstein and A. Vaenberg—when partners, and paid for with partnership funds. The parcel had been conveyed to M. Reinstein. The action was brought by. plaintiff as the assignee of Collins. Judgment passed for plaintiff. Defendants moved for a new trial, which was denied, and they prosecute this appeal from the judgment and order denying the new trial.

Collins, as stated above, the assignor of plaintiff and the partner of M. Reinstein, who had departed this life before the commencement of this action, was called as a witness and sworn. He had testified that he was the person named as S. H. Collins in the complaint; that he resided in San Francisco, and had business transactions with M. Reinstein in his lifetime. When this question was put to him by plaintiff’s counsel, “ what transactions did you have with him?” at this point an objection was made by counsel for defendants, as follows: —

“ Defendant objected to any testimony on the part of the witness Collins as to such transactions with said Marcus Reinstein, against the executors of said Marcus Reinstein, on the ground that the evidence is incompetent, irrelevant, and immaterial, and specially excluded by section 1880 of the Code of Civil Procedure of the State of California; it appearing from the amended complaint herein, and not denied in the answer, that said Collins is the plaintiff’s immediate assignor of the premises in controversy, and the said Marcus Reinstein died before the filing of the complaint herein.”

The objection was soon afterwards renewed, substantially, by defendants, as to any testimony of the witness relative to transactions had with Reinstein prior to his death. The objection was overruled. The witness testified fully in relation to transactions of the character referred to in the objection. An exception was reserved by defendants, and the ruling is now urged as error.

[91]We think the objection was so taken as to raise the question of the competency of Collins to testify as to any transaction occurring before M. Reinstein’s death. Collins was not a wholly incompetent witness; his incompetency, if any, was a qualified one. He was at any rate competent to testify to any matter relevant to the issues in the cause, occurring subsequently to Reinstein’s decease, and in fact some of his testimony was of this character. The objection referred to section 1880 of the Code of Civil Procedure, as rendering him incompetent to testify to the matters covered by the objection. We think this reference, with the other portions of the objection, sufficiently informed the court and the defendants that the objection was to the competency of Collins to the matters specifically referred to by counsel for defendants. The points presented in the form of words adopted by defendants’ counsel in stating his objection, was beyond an objection' that the testimony of the witness was incompetent, immaterial, and irrelevant. The court below so understood it, and we think it understood it properly. The objection was properly taken in limine, before the witness had given any testimony which was within the objection.