Barker v. Hebbard

Grant, J. Plaintiff sued Charles B. Hebbard to recover damages for alleged false representations as to the size of a piece of land which she purchased through defendant as agent for one Holmes. The suit was once tried during the life-time of Charles B. Hebbard, when both he and the plaintiff testified as to the transaction. That verdict was set aside, and a new trial ordered. After showing upon the second trial that Mr. Hebbard had died since the first trial, and that both he and the plaintiff then gave testimony, and were examined and cross-examined, counsel for plaintiff offered that the testimony of defendant so given on the former trial might be introduced, and that he would not object thereto, and thereupon offered to read in evidence the testimony given by the plaintiff' upon the former trial, which testimony tended to sustain the allegations in the declaration. To this, defendant’s counsel objected as incompetent, under How. Stat. § 7545, which prohibits one party who is living from testifying to facts which were equally within the knowledge of the deceased. The circuit judge sustained the objection, and plaintiff brings error. Under a similar state of facts, it was insisted that the plaintiff was competent to testify upon the second trial, but this Court held that that afforded no sufficient reason for abrogating the statute. Taylor v. Bunker, 68 Mich. 258. It is now sought to avoid the effect of that decision by offering to permit to the defense the right to have the stenographer placed upon the stand, and testify to what deceased said at the former trial, and, upon the refusal of the defense to accept the offer, then to have [270] the stenographer testify to what plaintiff said on that trial. But the statute is imperative, and stands as a barrier in the one case as well as in the other. The statute makes no exception, and we cannot legislate one into it. It expressly prohibits the living party from testifying. The second trial must be conducted in the same manner, and by the same rules, as the first. The question is presented to the court for its determination when the death of one party is proven. The burden of proof was upon plaintiff. She must first have made her case. We assume, though it does not clearly appear from the record, that she could not do this without her own testimony. But, if the stenographer gives her testimony correctly, she was testifying just as much as though she herself were on the stand. The stenographer's notes of testimony are not original evidence. The testimony taken by him is neither read over to, nor signed by, the witness. It has no more efficacy than the judge's notes, or notes taken by other parties. Edwards v. Heuer, 46 Mich. 95; Toohey v. Plummer, 69 Id. 345. Any one who has heard the testimony of the witness is competent to testify to what he said. Therefore, if plaintiff's contention be correct, the plaintiff herself might testify to what she said upon the former trial. The ruling of the circuit judge was correct, and the judgment must be affirmed, with costs. The other Justices concurred.