Lisman v. Early

12 Cal. 282

Opinion

Terry, C. J.,

delivered the opinion of the Court—Baldwin, J., concurring.

There is no doubt that the witness, Hertch, was incompetent on the ground of interest, and his testimony was improperly admitted.

It is urged by respondent, that this being an equity case, the Court will not reverse because of the admission of improper evidence, but will proceed to examine and decide the case upon the legal evidence in the record. This is the ordinary and proper course in such cases, when the evidence in the record, excluding that improperly admitted, is satisfactory, which is not the case here, as it is by no means clear that the judgment can be sustained by the record without the evidence of Hertch.

The judgment is reversed, and a new trial ordered.