Reed v. Drais

California Supreme Court Sep 25, 1885 No. No. 9910Published

Before: Searls

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Holding. The court affirmed the judgment for the defendant, holding that a demurrer cannot be directed at a portion of a pleading, that witnesses must establish a foundation of knowledge before testifying to property value, and that newly discovered cumulative evidence does not warrant a new trial.

Issues

Whether a demurrer may be interposed to a part of a cause of action or defense.
Whether the trial court erred in excluding testimony regarding land value from witnesses who failed to establish sufficient knowledge.
Whether a new trial should be granted based on newly discovered evidence that is cumulative.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A demurrer cannot be interposed to a part of a cause of action or defense.”

“A witness called upon to give an opinion on the subject of value, whether offered as an expert or not, must lay a proper foundation for the introduction of his opinion”

“The newly discovered evidence was, according to the affidavits, cumulative, and in such cases, it is well settled, a new trial should not for such cause be granted.”

Synopsis

Pleading—Demdebeb to Pabt of a Cause of Action.—A demurrer cannot be interposed to part of a cause of action or defense. If the part demurred to is irrelevant or immaterial, a motion to strike out may be made, but a demurrer must go to the whole cause of action or defense.

Evidence—Value of Land—Opinion of Witness,—A witness called upon to give an opinion as to the value of laud must lay a proper foundation by showing that he possesses the means to form an intelligent opinion; but it is not essential that his knowledge should be derived from any peculiar skill in a particular pursuit or branch of business or department of science.

Pbactice—NewTeial—Cumulative Evidence.—A new trial will not be granted on the ground of newly discovered evidence, where such evidence is merely cumulative.

Searls, C. This is an action by Miriam P. Reed, an infant, by her guardian ad litem,, W. K. Reed, to quiet title to certain land. Plaintiff claims that the land in controversy was conveyed to her by a sister. That the grantor, before the deed was recorded, went to the office of the county recorder and took the deed therefrom, and sold and conveyed the same land to defendant, and that defendant had notice of such previous conveyance at the date of the sale and 'conveyance to him. Defendant denied all notice of a previous conveyance by his grantor and denied plaintiff’s title. The cause was tried by the court, findings waived, and judgment entered for.defendant. Plaintiff moved for a new trial, which was denied, and this appeal is prosecuted from the judgment and order denying a new trial.

The demurrer to a portion of the amendments to defendant’s answer was properly overruled.

A demurrer cannot be interposed to a part of a cause of action or defense. If irrelevant or immaterial, a motion to strike out [492]may be interposed; but a demurrer, to avail anything, must go to the whole cause of action or defense.

In the absence of a showing as to the materiality of the testimony sought to be introduced in reference to the value of the land, we cannot say the plaintiff was injured by the refusal of the court to permit W. K. Reed and E. Olmstead to testify as to such value.

Conceding that the testimony may have been admissible, the witnesses offered failed to show themselves possessed of the requisite knowledge to authorize them to testify as to the value of the land.

“Where a witness is produced to testify in the character of an expert, as to the value of property, it should appear that he has some special skill or experience, or peculiar knowledge of the value of the class of property about which it is proposed to question him, such skill or knowledge having been acquired by him in the line of his profession or business.” (Rogers on Expert Testimony, § 154.)

According to Wharton on Evidence, section 447, two essentials are requisite to a proper estimate of value: —

“ First—A knowledge of the intrinsic properties of the thing.

"Secondly—A knowledge of the state of the market.

Reed v. Drais

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