Maxcy v. Peavey Publishing Co.

Crownhart, J. The evidence and findings in this case are very unsatisfactory. This is recognized in the opinion of the judge wherein he says: “It is pretty hard to draw any conclusion with any degree of certainty from the testimony as to how much the company owed Peavey at the time of the service of the summons.” The onus was on the plaintiff to establish fhe essential facts entitling him to recovery by a preponderance of the evidence. [406] The only evidence in the case is that of the defendant Peavey, given on the trial, and certain testimony theretofore given by him in other cases involving different issues and different parties. The only way the latter testimony may be considered' is on the theory that it came in without proper objection. On the trial of jury cases it is necessary for the protection of the court and to prevent mistrials that objections to admissibility of evidence be specific so as to direct the attention of the court to' the particular point of objection to the evidence offered. The necessity of the rule is not so great in cases tried before the court, where the court has time for reflection and investigation. Hence tire rule will not be applied in such cases with the same strictness as in jury trials. It is a universal rule that evidence given in other cases at other times is not admissible in a case on trial unless it is shown that the witness cannot be produced, and then only where the parties are identical and the issues are the same. 22 Corp. Jur. 427-437. Based on this rule, the evidence of Peavey given in other cases was not admissible except for the purpose of impeachment when proper foundation was laid, or as admissions binding on him but which could not have any probative force as to other parties. It is claimed that the improper evidence was not objected to- on proper grounds. Our examination of the record leads us to the conclusion that one objection made to the introduction of the evidence of Peavey in the Hering case, that “the deposition was not taken in this action,” was sufficient to apprise the court of the fact that the evidence was inadmissible. This objection, having been once taken and overruled, did not have to be repeated when subsequent testimony was offered, open to the same objection in a trial before the court. Sharon v. Sharon, 79 Cal. 633, 22 Pac. 26, 131; Thomas v. Carey, 26 Colo. 485, 58 Pac. 1093; Gilpin v. Gilpin, 12 Colo. 504, 21 Pac. 612; Metropolitan Nat. Bank v. Commercial State Bank, 104 Iowa, 682, 74 N. W. 26; Carlson v. Winterson, [407] 147 N. Y. 652, 42 N. E. 347; Sherman v. D., L. & W. R. Co. 106 N. Y. 542, 13 N. E. 616; Hoffmanv. Conner, 76 N. Y. 121; Dilleber v. Home L. Ins. Co. 69 N. Y. 256, 25 Am. Rep. 182; Salt Lake City v. Smith, 104 Fed. 457, 43 C. C. A. 637; Louisville & N. R. Co. v. Gower, 85 Tenn. 465, 3 S. W. 824. The testimony should have been considered only to the extent that it impeached the witness or constituted an admission against him. We have examined the evidence with care and cannot find support for the findings of the court that the Peavey Publishing Company owed Peavey any greater sum than disclosed by the answer. Nor can we find any support in the evidence that Peavey was not entitled to the exemption of $180. The testimony of Peavey that at the annual meeting of the stockholders of the garnishee on December 8, 1920, six days before service of summons herein, he canceled any claims he had against the company as an inducement to his brother to buy stock in the corporation, and that the brother bought in on that basis, seems to stand uncontradicted. Such an agreement would be valid and binding unless collusion in fraud of creditors was shown. There is no suggestion in the pleadings, evidence, or findings of collusion or fraud. The court disposes of this phase of the case by a bare reference to it in his opinion, but with no reference to it in his findings of fact. Upon the whole case it appears that the judgment is not based upon sufficient evidence to sustain any liability beyond the sum disclosed, and it appears without controversy that the exemption should have been allowed. Sec. 2405m, Stats. By the Court. — The judgment is reversed, with direction to the trial court to modify the judgment in accordance with this opinion. Rosenberry and Eschweiler, JJ., dissent.