Vandevier v. Fetta

Mr. Justice Goddard delivered the opinion of the court. This case comes before us on an appeal from a judgment of the court of appeals. In the opinion delivered by President Judge Bissell of that court, and found at page 420, 3 Colo. App., the facts are fully stated, and the questions presented therein are discussed in his usual luminous and forcible manner, and the conclusion reached is in accord with well established and beneficent equitable principles. We agree with the intimation of the learned judge that it is, at least, not free from doubt whether the appellate court ought not, sua sponte, to exclude the testimony of Vandevier from the consideration of the case, notwithstanding the failure of the guardian ad litem and the court below to protect the minor’s rights by objecting to or excluding testimony so manifestly incompetent. But, however that may be, we are clearly of the opinion that the admission of his testimony over the objection of the intervenor constitutes an error that must reverse the judgment of the court below. The judgment of the court of appeals is therefore affirmed. Affirmed.