Greene v. Holley

Wisconsin Supreme Court

Greene v. Holley

2 Pin. 488, 2 Chand. 168

CourtWisconsin Supreme Court

DecidedJune 15, 1850

StatusPublished

Cited by1 cases

This text of 2 Pin. 488 (Greene v. Holley) 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.

Bluebook

Greene v. Holley, 2 Pin. 488, 2 Chand. 168 (Wis. 1850).

Pincite

Opinion

Htjbbell, J.

The plaintiff in error, who was notified to appear and testify on the trial of the cause before the justice, on appeal to the circuit court, offered himself as a witness, no new or further notice having been served on him, and the defendant in error having omitted to notify or call him as a witness in that court.

The practice has prevailed, and I think correctly, of allowing a party notified to appear and testify in a cause to offer himself as witness, in case the opposite party does not call him. Under this practice, and not under any positive provision of the statute, I suppose, the offer of Greene's testimony was made. The difficulty in the case is, that there was no notice requiring him to appear and testify in the circuit court, and I think his testimony was properly rejected.

[490]*490The right to compel a party to give evidence in the cause is a strict statutory privilege. The party claiming the privilege must show full compliance with the statute, or he loses his right. In this case, Holley had not taken the requisite steps to compel Greene to testify, and the right of Gi'eene could not be broader than that of his opponent. It was contended, however, that the notice served on the trial in the justice’s court was sufficient to require the attendance of Greene as a witness in the circuit court. This would be giving the statutory right an unwarrantable latitude.

It is true, the issue and pleadings on appeal are to be the same as in the court belorv, but it does not follow that the witnesses or proofs are to be the same. On the contrary, the very object of an appeal may be to procure further evidence, or to dispense with the evidence of the party called as a witness before the justice. This is clearly the right of each of the parties. Besides, there is no sound reason why a party whose testimony is wanted in the appellate court should not have a proper notice to appear and testify, as well as the other witnesses in the cause. It would not be contended for a moment that service of a subpoena to testify before the justice would be sufficient to require the attendance of witnesses in the circuit or county court.

Judgment affirmed with costs.

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Htjbbell, J.

The plaintiff in error, who was notified to appear and testify on the trial of the cause before the justice, on appeal to the circuit court, offered himself as a witness, no new or further notice having been served on him, and the defendant in error having omitted to notify or call him as a witness in that court.

The practice has prevailed, and I think correctly, of allowing a party notified to appear and testify in a cause to offer himself as witness, in case the opposite party does not call him. Under this practice, and not under any positive provision of the statute, I suppose, the offer of Greene's testimony was made. The difficulty in the case is, that there was no notice requiring him to appear and testify in the circuit court, and I think his testimony was properly rejected.

[490]*490The right to compel a party to give evidence in the cause is a strict statutory privilege. The party claiming the privilege must show full compliance with the statute, or he loses his right. In this case, Holley had not taken the requisite steps to compel Greene to testify, and the right of Gi'eene could not be broader than that of his opponent. It was contended, however, that the notice served on the trial in the justice’s court was sufficient to require the attendance of Greene as a witness in the circuit court. This would be giving the statutory right an unwarrantable latitude.

It is true, the issue and pleadings on appeal are to be the same as in the court belorv, but it does not follow that the witnesses or proofs are to be the same. On the contrary, the very object of an appeal may be to procure further evidence, or to dispense with the evidence of the party called as a witness before the justice. This is clearly the right of each of the parties. Besides, there is no sound reason why a party whose testimony is wanted in the appellate court should not have a proper notice to appear and testify, as well as the other witnesses in the cause. It would not be contended for a moment that service of a subpoena to testify before the justice would be sufficient to require the attendance of witnesses in the circuit or county court.

Judgment affirmed with costs.

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Bluebook (online)

2 Pin. 488, 2 Chand. 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greene-v-holley-wis-1850.

Opinion

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