King v. McCarthy

55 N.W. 960, 54 Minn. 190, 1893 Minn. LEXIS 40

• Court: Supreme Court of Minnesota
• Decided: July 14, 1893
• Status: Published

Opinion

Mitchell, J.

After the decision of the former appeal 50 Minn. 222 (52 N. W. Rep. 648) the defendants demanded and obtained a second trial of this action, as being one for the recovery of real property. The only questions presented on the present appeal are —First, whether the plaintiff laid the proper foundation for the introduction of the testimony of E. W. Bell given on the former trial; and, second, whether the court allowed the defendant Mary McCarthy all the land to which she was entitled, as the homestead of her deceased husband.

1. It is not questionéd but that a proper- foundation was laid, within the rule of Minneapolis Mill Co. v. Minneapolis é St. L. Ry. Co., 51 Minn. 304, (53 N. W. Rep. 639,) for the introduction of the testimony of Bell on the former trial, provided no error was committed in the admission of evidence on the preliminary question. As the doctrine of that case .is characterized as "extraordinary,” it may be remarked that it does not go any further than many of the authorities, and not any further than the strictest of them, except that, where the evidence was taken down in full on the first trial by an official reporter, it does not require a showing that, with the exercise of reasonable diligence, the deposition of the nonresident witness could not have been taken out of tbe state. After a showing that Bell, wbo had resided for many years in St. Paul, had, about three and a half months before the trial, left the state, with his family, leaving no home or place of residence behind him, and, so far as his relations knew, had not been within the state since that time; that his brother in St. Paul had, since his departure, received frequent letters from him, dated at Chicago, New York, Indiana, Kansas City, and St. Louis, the latest being from the last-named place, about two weeks previously; that plaintiff had issued, and placed in the hands of the sheriff of Ramsey county, two subpoenas for him, (one over two months before the trial, and the other later,) to both of which the sheriff had returned that he could not be found,- — -the plaintiff was then permitted to introduce the deposition of Bell in another action, between different parties, taken about three or four weeks previously in St. Louis, in which he stated that he was a resident of St. Louis, giving the street and number of his place of business in that city. The admission of this statement in Bell’s deposition is assigned as error on the ground that, as to defendant, it was mere hearsay. Bell was a party defendant to this action, and the court seems to have admitted the statement as the admission of a party against himself. Whether it was admissible on this ground against the other defendants we have not found it necessary to consider. It will be observed that it was not admitted as evidence on any of the issues in the case, but only upon the preliminary question whether the witness was out of the jurisdiction of the court, and beyond the reach of its process, and was likely to remain so. While, in order to warrant the introduction of the testimony of an absent witness, given on a former trial, it is not always necessary that it should appear that he is actually domiciled abroad, yet-the fact that he is, is the most satisfactory evidence that he intends to remain abroad, and is not likely to return within the reach of process of the court. Whether he intends to return is a fact only positively known to himself, and upon that question his own declarations are admissible, in connection with other evidence of the fact of his departure or absence from the state. We do not understand that the competency of evidence upon a preliminary question of this kind, which is, to a certain extent, addressed to the sound discretion of the court, is governed by tte same strict rules which, apply to the admission of evidence upon the issues in the case. Anything which will reasonably satisfy the court that the absent witness is not likely to return within the jurisdiction of the state may bh admitted. See Wyatt v. Bateman, 7 Car. & P: 586; Austin v. Rumsey, 2 Car. & K. 736; also, Prince v. Blackburn, 2 East, 250.

(Opinion published 55 N. W. Rep. 960.)

2. Under the assignments of error the' second question is not really in the case. The court allowed Mary McCarthy a life estate in all the property which, according to the finding of fact, constituted the homestead of her husband at the time of his death, and the finding of fact is not assailed by any sufficient assignment of error. The widow’s life estate was limited to the land to which her husband was entitled as a homestead at the time of his decease; and his right was limited to the land, not exceeding the statutory area, which he had dedicated to homestead purposes, and was actually occupying as such at the time of his decease. In this case there is neither finding nor evidence that at the time of the husband’s decease he was occupying,, as a part of, or as appurtenant to, his homestead, any more land than what the court allotted to the widow.

Order affirmed.