Etchemende v. Stearns

44 Cal. 582

• Court: California Supreme Court
• Decided: July 1, 1872
• Docket: No. 3,026
• Status: Published

Opinion

By the Court, Rhodes, J.:

Eor the purpose of proving the alleged partnership between Stearns and Turner, the Court Commisssioner admitted in evidence, against the objection of the defendant, a number of affidavits which had been obtained by Turner, and filed in the case of Stearns v. Turner, for the purpose of dissolving an attachment. The main purpose for which they were used in that case, was to prove the principal point in issue in this case—the partnership between Stearns and Turner—which is affirmed by the latter, and denied by the former. We cannot conceive of any principle which would justify their admission under the circumstances of this case. Eor aught that appears in the case, all the persons who made those affidavits 'were living and within the jurisdiction of the Court, and in every respect competent as witnesses in this case.

The answer of Turner, which was filed in the case of Stearns v. Turner, was not admissible as against Stearns to prove the partnership. (Coll. Part., Sec. 772.)

Judgment and order reversed, as of the day of the submission of the cause, and cause remanded for a new trial.