Dunck v. Milwaukee County

Wisconsin Supreme Court

Dunck v. Milwaukee County

79 N.W. 412, 103 Wis. 371, 1899 Wisc. LEXIS 201

DecidedJune 2, 1899

StatusPublished

This text of 79 N.W. 412 (Dunck v. Milwaukee County) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dunck v. Milwaukee County, 79 N.W. 412, 103 Wis. 371, 1899 Wisc. LEXIS 201 (Wis. 1899).

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Opinion

WiNSLow, J.

The defendant did not deny the services of the plaintiff’s intestate, but claimed they were rendered under an agreement that the price thereof should not exceed $10 per day, and this was the fundamental issue between the parties upon the trial. Upon this issue the defendant called as witnesses two members of the investigating committee who employed Dunck, who testified to the making of a special contract with him by which he was to receive not exceeding $10 per day for his services. In rebuttal the plaintiff offered the testimony given by Dunck before' the same committee, in which he testified that there was no such .agreement. The defendant objected to this testimony as incompetent, and the objection was overruled, and the sole question on the appeal is whether this ruling was correct.

It appears from the evidence that the investigating committee, after making some investigations, and after Dunck had performed his work, were directed, by resolution of the county board, to make investigations into other matters, and to report the cost of the entire investigation. It was evidently under this last clause that Dunck was examined and gave the evidence in question. With regard to the reception of such evidence the rule is that evidence given under oath in a judicial proceeding is admissible in a subsequent [373]*373action, or a subsequent proceeding in the same action, where it is shown that the witness is dead, and that the parties and the issue are in substance the same. Jones, Ev. §§ 339, 340; McGeoch v. Carlson, 96 Wis. 138. It is clear that the evidence offered does not come within the rule. The proceeding before the committee was not an action or a judicial proceeding, within the meaning of the term as here used, nor was there any issue then pending between the county and Hunch.

By the Court.— Judgment reversed, and action remanded for a new trial.

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WiNSLow, J.

The defendant did not deny the services of the plaintiff’s intestate, but claimed they were rendered under an agreement that the price thereof should not exceed $10 per day, and this was the fundamental issue between the parties upon the trial. Upon this issue the defendant called as witnesses two members of the investigating committee who employed Dunck, who testified to the making of a special contract with him by which he was to receive not exceeding $10 per day for his services. In rebuttal the plaintiff offered the testimony given by Dunck before' the same committee, in which he testified that there was no such .agreement. The defendant objected to this testimony as incompetent, and the objection was overruled, and the sole question on the appeal is whether this ruling was correct.

It appears from the evidence that the investigating committee, after making some investigations, and after Dunck had performed his work, were directed, by resolution of the county board, to make investigations into other matters, and to report the cost of the entire investigation. It was evidently under this last clause that Dunck was examined and gave the evidence in question. With regard to the reception of such evidence the rule is that evidence given under oath in a judicial proceeding is admissible in a subsequent [373]*373action, or a subsequent proceeding in the same action, where it is shown that the witness is dead, and that the parties and the issue are in substance the same. Jones, Ev. §§ 339, 340; McGeoch v. Carlson, 96 Wis. 138. It is clear that the evidence offered does not come within the rule. The proceeding before the committee was not an action or a judicial proceeding, within the meaning of the term as here used, nor was there any issue then pending between the county and Hunch.

By the Court.— Judgment reversed, and action remanded for a new trial.

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79 N.W. 412, 103 Wis. 371, 1899 Wisc. LEXIS 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunck-v-milwaukee-county-wis-1899.

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