Barker v. Buhre

Cassoday, J. The evidence in behalf of the plaintiff seems to be sufficient to sustain the verdict. There are some irregularities in the admission and exclusion of evidence, however, to be considered. It appears from the record before us that after Lucy A. Barlow, the principal witness on the part of the defendant, had been examined, the plaintiff was allowed, by way of impeaching her, to prove by a son of the deceased, in effect, that he was at her house soon after his 489 father’s death, when she produced two packages, one of ’which, being sealed up, she represented as her own private papers, and the other of which she represented as papers belonging to the estate; and that, as the papers were read off, the note and mortgage in question were found to be in that package; that the defendant, being asked how that was, Miss Barlow spoke up to the defendant and said: “That’s yours; I didn’t think anything about it;” but that neither said anything afiout that note and mortgage having been disposed of by the deceased. Some parts of this testimony were objected to and others not. It does not appear from the record before us that any foundation for such impeaching testimony had been laid by first putting the proper .questions to Miss Barlow. It was claimed on the oral argument by the learned counsel for the plaintiff that such questions were put, and he verified such claim by reading from the reporter’s minutes. Unfortunátely for the plaintiff, however, those portions of the minutes were not incorporated into the bill of exceptions, and hence we are not at liberty to consider them. But the plaintiff will not suffer from the oversight, since we must reverse the judgment on other grounds. The stipulation between the parties had, prior to the last trial, eliminated from the issues made by the pleadings all controversy about any of the property therein mentioned, except this note and mortgage. The only controversy in relation to them was whether the deceased, in his last sickness, and in contemplation of death, voluntarily surrendered and extinguished the note and mortgage by actually delivering them to Miss Barlow as a gift causa mortis to the defendant. Wilcox v. Matteson, 53 Wis. 23; Basket v. Hassell, 107 U. S. 602; Brunn v. Schuett, 59 Wis. 260, and cases there cited. As to that controversjq Miss Barlow was not a party, but a mere witness; as to the other property, she was probably upon the first trial treated as the real party in interest, 490 and hence considerable latitude given by way of inquiring into the relations which had for many years existed between her and the deceased, and how far she had been the recipient of his bounty. Upon the last trial she was simply a witness, and hence most, if not all, of those questions were out of the case. Upon that trial she should have been treated as any other witness giving testimony under like circumstances. The examination of her and all other witnesses should have been confined to the only question then in controversy. It is very evident this was not done. On the contrary, much testimony was admitted, against objection, on the part of the defense, which liad no bearing upon that issue. Thus, she was asked, in effect, who purchased the house where she lived, and whether she came west at the time the deceased bought that house. So Dr. Scott was asked, in effect, what the deceased said to him in regard to his financial and money matters. To this question the doctor testified, in effect, that a few days before he died Mr. Pease asked Miss Barlow for his pocket-book, which she gave to him, and that it was a very large one, with a very large roll of money in it. These are a few samples of the lines of inquiry permitted by the trial court. We think it may be fairly inferred that there was testimony admitted which had the effect to prejudice the defendant’s case before the jury. For these reasons the judgment of the circuit court must be reversed, and the cause remanded for a new trial. By the Court.— It is so ordered.