Parker v. Smith

4 Cal. 105

• Court: California Supreme Court
• Decided: January 15, 1854
• Status: Published

Opinion

Mr. Ch. J. Murray

delivered the opinion of the Court.

Mr. J. Heydeneeldt concurred.

On the trial of this cause, one of the witnesses deposed to a state of facts which, upon his cross-examination, proved to be hearsay evidence, and wholly inadmissible; whereupon the Court ordered the testimony of the witness to be stricken out and instructed the jury to disregard it.

The appellant assigns this as error; first, because the testimony was not objected to, in limine, by the respondent; and, second, because the Court, of its own motion, ruled it ■out.

The objection is not well taken. The respondent could not know the witness’ means of information, until he was subjected to a cross-examination, and ought not to be required to except * to testimony before it [106] appeared that such testimony was objectionable.

The right of the Court to interfere is also undoubted. The testimony was clearly improper. The duty of the Court is not confined to passing upon such portions of testimony as may be excepted to, but extends to the preservation oí the rights of litigants, and a proper disposition of the matters in controversy.

Judgment affirmed.