Elberfeldt v. Waite

Cassoday, J. Daniel Schultz, the general agent, and adjuster of the insurance company, was" the principal witness for the plaintiff in the justice’s court. Prior to the trial on the appeal in the circuit court Schultz died. Error is assigned because the court admitted in evidence that portion of the minutes of the justice on the trial before him which contained the testimony of Schultz. The only foundation laid for such admission was the testimony of the justice to the effect that perhaps he did not take down the entire testimony of Schultz; that he intended to get the main facts, that possibly he did not use the exact words of the witness ; that he intended to get the facts, but may not have [286] used tbe same words, that be probably missed some words, possibly a good many; that whether he got it all down depended upon circumstances; that when the witness went too rapidly to take it all down he always checked him; that he did not think he had left out any of the facts in the case; that, judging from the minutes, he should think that the testimony of Schultz was as contained in the minutes; that he should judge so, although he could not then remember, after having his mind refreshed by reading the minutes,— nothing else to go by. We are forced to the conclusion that the foundation thus laid was insufficient to justify the admission of such minutes, within the rule laid down by this court in Zitske v. Goldberg, 38 Wis. 216. It was there held that “ the minutes of a justice of the peace of testimony taken at a trial before him are not admissible at the trial of the same cause on appeal in the circuit court, either as evidence of the facts at issue or to impeach or sustain the credibility of a witness by showing what he testified before the justice.” Certainly incomplete and inaccurate minutes of such testimony are inadmissible. Of course, as indicated by Mr. Justice LyoN in the case cited, it was competent to prove what Schultz thus testified to before the justice in a legitimate way. By the Court.—The judgment of the circuit court is reversed, and the cause is remanded for a new trial.