Hannum v. Pownall

Opinion by Mr. Justice Fell, The action was a feigned issue under the sheriff’s interpleader act to determine the title to personal property levied on by the sheriff. One of the claimants was the wife of the execution debtor, and the controversy relates entirely to her claim. At the trial she was held to strict proof of the acquisition, in good faith and in her own right, of the property in question, by means of her ownership of a separate estate. The testimony presented by her was sufficient to take the case to the jury, and we find no error in the charge. The second specification of error is the only one which presents any difficulty. The case turned upon proof by the plaintiff that she was the .owner in her own right of $1,000, which was paid on account of the purchase money of the farm on which she lived with her husband. She testified that she had received this money from the estate of an uncle whom she had nursed, and that a part of it was in payment of her charge for services, and the balance, a gift from, his widow, Mrs. Eavenson. In corroboration of her testimony the attorney who had represented the estate was called and asked whether he knew that Mrs. Eavenson, who had since died, had received $1,000 from her husband’s estate, and was cautioned to state only what he knew of his own knowledge. This question was objected to, and the witness answered that Mrs. Eavenson had told him that she inherited $1,000 from her husband and gave it to tbe plaintiff for having cared for him. The plaintiff might have shown in connection with proof of actual payment the circumstances under which payment was made an d the inducement which lead to it, but the fact that Mrs. Eavenson had the money with which to pay was not in itself ground for the inference that she had paid. As no explanation was made of -the purpose of asking this question, it would have been better to have sustained the objection to it, but the part of the answer which was responsive to the question was harmless. The statement by the witness that Mrs. Eavenson had told him that she had given the money to the plaintiff was hearsay, and not admissible as evidence. It was [297] not responsive to the question asked, and no doubt would have been struck out, on request, by the court. But the defendant did not ask to have it struck out, but proceeded to cross-examine in relation to it, and thus developed the subsequent testimony which was most harmful to his case, if any harm was done by it. Having allowed the unresponsive answer to remain without objection, and having taken the chance in cross-examination of developing something favorable to his contention, the defendant has no standing to object that the testimony was improperly admitted. The judgment is affirmed.