Brodek v. Ellis

By the Court, Sawyer, J. This was an action to recover certain personal property, which had been seized by the defendant, as Sheriff, under an [147] attachment issued in the case of Meyer and Wormser v. Brodek Brothers. Plaintiff recovered, and defendant appealed. Defendant offered one Leopold King as a witness, to prove that plaintiff was one of the firm of Brodek Brothers, defendants in the attachment suit—one of the issues in the case. On voir dire, King testified that he was one of an association of merchants known in San Francisco as the “ Combination that, according to their rules, when information was received by one of the association that a customer was about to fail, notice was immediately given to the other members, and such of them as had demands against the failing customer assigned them to some one or more of the members of the association, and an attachment suit was commenced in their names against the common debtor for the aggregate amounts due the parties interested—the members sharing the expense of the litigation which might follow, and dividing the amount realized in proportion to the amount of their respective claims ; that the firm of which he was a member was a creditor of Brodek Brothers ; that the firm had assigned to Meyer and Wormser their account against Brodek Brothers, and that this account thus assigned, in pursuance of the rules of the “ Combination,” formed a part of the demand claimed in the attachment suit in which the goods were seized. Plaintiff objected to the witness on the ground that the suit was defended for his benefit to the extent of his share in the amount claimed in the attachment suit prosecuted in the name of Meyer and Wormser, and he was therefore interested in the event of the suit. The Court sustained the objection; defendant excepted, and this ruling is relied on as error. The" plaintiff had before been examined upon the same point on his own behalf, upon notice in pursuance of section four hundred and twenty-two of the Practice Act, as amended in eighteen hundred and sixty-one. Section four hundred and twenty-two, as then in force, provides that “ a person for whose immediate benefit the action is prosecuted or defended, though not a party to the action, may be examined as a witness in the same manner, and subject to the same rules of [148] examination, as if he were named as a partyand then provides that a party may be examined in his own behalf, upon giving ten days notice in writing to the adverse party of such intended examination, specifying the points upon which he intends to be examined; “ and whenever a party or person in interest has been examined under the provisions of this section, the other party or person in interest may offer himself as a witness in his own behalf, and shall be so received.” Upon a careful examination of this section, in connection with the other provisions of the Practice Act relating to the subject, we are satisfied that King was a party in interest within the meaning of section four ■ hundred and twenty-two; and the plaintiff having offered himself and been examined as a witness upon the same point on his own behalf, that King was also entitled to be examined on his own behalf without giving any notice. It is insisted by respondent that King falls within the provisions of each of sections four, three hundred and ninety-two, three hundred and ninety-three and three hundred and ninety- . four. Conceding this to be so, the plaintiff also falls within some of those provisions and would be incompetent under them. But section four hundred and twenty-two, subsequently passed, provides that upon certain prescribed conditions he may, at his election, testify on his own behalf, notwithstanding his interest; but the consequence imposed on him by the same section is that, if he does so, the opposite party or person in interest shall also be received as a witness on Ms own behalf. The plaintiff availed himself of the privilege and he must submit to the consequences. The Court erred in excluding King’s testimony. As the matters offered to be proved by him were material, the judgment must be reversed on this ground and a new trial had, and it is so ordered.