Lamberson v. Lamberson , 175 Wis. 398 ( 1921 )

Siebecicer, C. J.

(dissenting). I cannot concur in the decision and opinion of the court. Permitting the plaintiff to testify to transactions with his father concerning the signing and delivery and plaintiff’s redelivery of the land contract in December, 1901, as detailed in the statement of the case and the opinion of the court, clearly shows, in my opinion, that the trial court erred in receiving plaintiff’s evidence of those transactions oyer defendants’ objection under sec. 4069, Stats.' Nor can I concur that defendants waived this objection by their offer of plaintiff’s deposition as an adverse party without qualifications before the reception of evidence was closed. To hold that such offer so made after the court had erroneously admitted evidence of the substantial and material parts of such transactions with the deceased was an opening of the door on this subject by defendants,'seems to me contrary to the intent of the parties. Such offer by defendants of plaintiff’s adverse examination was manifestly induced by the court’s erroneous ruling in admitting at the trial plaintiff’s oral testimony of these transactions with his deceased father. In view of the court’s action on this subject defendants’ counsel naturally supposed that all plaintiff had testified to on this point was before the court and would be considered in deciding the case. It seems plain to me that this court’s decision on this phase of the case is a misinterpretation of the defendants’ purpose in thus finally meeting the trial court’s erroneous rulings under the provisions of sec. 4069, Stats. A study of the evidence persuades me that the trial court’s findings that plaintiff’s father conveyed title by contract to the farm in question in December, 1901, are not sustained by the record on which the trial court acted. Furthermore, if the evidence of plaintiff concerning the transaction between him and his deceased father in December, 1901, be excluded from the case, as I think it should be, because incompetent under sec. 4069, Stats., then there is no evidence in the case to sustain the plaintiff’s case.

I am of the opinion that the trial court committed prejudicial error in receiving plaintiff’s evidence of the transaction with his deceased father and improperly based its findings on such evidence, and that there is no legal evidence to sustain the judgment and it should be reversed.

I am authorized to state that Mr. Justice Owen concurs in this dissent.

A motion for a rehearing was denied, with $25 costs, on December 13, 1921.