Jerome v. Bohm

Mr. Justice Goddard delivered the opinion of the court. Many of the numerous errors assigned involve a review of the judgment upon the evidence. Under the well established practice of this court, no exception having been saved to the final judgment, we are precluded from considering the testimony, either as to its probative force to support the alleged trust, or its sufficiency to sustain the defense of res adjudicala, or the statute of limitations. Patton v. The Coen & Ten Broeke C. M. Co., 3 Colo. 265; Rocky Mountain Nat. Bank v. McCaskill, 16 Colo. 408; Law v. Brinker, 6 Colo. 555; Hochmark v. Richler, 16 Colo. 263; Wray v. Carpenter, 16 Colo. 271; Burnell v. Wachtel, 4 Colo. App. 556. The contention of counsel for appellant, that this rule is not applicable to equity cases, is answered by several decisions of this court. Among others, see Marshall Silver Mining Co. v. Kirtley, 8 Colo. 108; Blatchley v. Coles, 6 Colo. 82; Rocky Mountain Nat. Bank v. McCaskill, supra. It remains only to consider those assignments predicated upon exceptions, duly reserved upon the trial, to the admission of evidence, and we are enabled to do this only by indulging in perhaps the unwarrantable assumption that the evidence introduced upon the accounting and not preserved by the bill of exceptions, could not, in its very nature, qualify or affect the evidence so admitted upon the trial of the main issues. These assignments of error challenge, first, the admissibility of any proof under the complaint, because •the alleged trust was void under the statute of frauds. Over [326] the objection o£ defendant, the deed of plaintiff to Charles Bohm, and other conveyances of title to the property in controversy, were introduced in evidence ; and the testimony of Ferdinand Bohm, a deceased witness, given upon the trial of the suit in the superior court of Denver, between the testatrix, Mary Bohm, and the appellee, Magdalena Bohm, Avas admitted, and Herman Bohm allowed to testify to the parol agreement alleged in the complaint. The admissibility of this evidence we do not regard as an open question. This court, in the case of Bohm v. Bohm, 9 Colo. 100, in discussing the counterclaim filed in that case by Magdalena Bohm, the plaintiff here, and which stated in substance the trust set forth in her complaint herein, used the following language : “ * * * Where a person occupjdng a fiduciary relation to the owner of real estate takes advantage of the confidence reposed in him by virtue of such relation to acquire an absolute conveyance thereof, without consideration, through a verbal agreement, Avhich he promises to reduce to writing; as, for example, that the land conveyed to him is to be held in trust for some legitimate purpose. A refusal, under such circumstances, to reduce the verbal agreement to writing, or to reconvey the land to the real owner, is such an abuse of confidence as to vest a court of equity with jurisdiction to inquire thoroughly into the entire transaction, and to set aside the conveyance, or administer other proper relief.” Even if the doctrine thus announced is not to be taken as the “ law of the case,” we adopt it as a correct enunciation of the rule applicable to trusts of this character. Second, the admissibility of the testimony of Ferdinand Bohm is further challenged because plaintiff, by averring in her replication, and contending upon the trial of the cause, that the superior court had no jurisdiction of the subject-matter of that suit, is estopped from claiming that the evidence of said witness was given under the sanctity of an oath. It by no means follows that if the superior court Avas with [327] out jurisdiction of the subject-matter of the controversy in that suit, and without power to grant the ultimate relief sought (a question not presented by this record), that it also lacked the authority, having obtained jurisdiction of the parties, to compel the attendance of witnesses and to legally administer oaths for the purpose of elucidating the truth of the facts involved in the controversy, and upon which even its jurisdiction might depend; or, that the evidence adduced was given coram non judiee, in the event the court should finally determine it had no jurisdiction to grant ultimate relief in the case. The testimony of this witness was taken, under the sanctity of an oath lawfully administered, and we cannot perceive wherein appellee, by her replication or otherwise, controverts this fact. We think this contention is without merit. The third and further objection presented by the record is that the appellee was permitted to testify in her own behalf, the action being one wherein appellant defended in his representative capacity, as executor, etc. She was first called by defendant to prove the execution of a paper filed of record, giving notice of her claim to the property in question. She was then, over defendant’s objection, allowed to testify in her own behalf. Our statute, section 3641, provides “ That no party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein, of his own motion, or in his own behalf * * * when any adverse party sues or defends * * * as executor * * *, unless when called as a witness by such adverse party, so suing or defending.” Gen. Stats. 1883. It will be seen that the statute prohibits parties to an action from testifying when the adverse party sues or defends in a representative capacity, of their own motion, or in their own behalf, unless called by the adverse party; but when called as a witness by such party, the inhibition of the statute is removed and they become competent to testify as fully as any other witness in the case. Warren v. Adams, 19 Colo. 515. [328] The court below, therefore, correctly held that defendant, by calling appellee as a witness in the first instance, made her a competent witness for all purposes. Our conclusion is that the record before us presents no reviewable error that justifies a reversal, arid the judgment is accordingly affirmed. Affirmed.