Pond v. Okey

30 N.W. 500, 70 Iowa 244

• Court: Supreme Court of Iowa
• Decided: December 10, 1886
• Status: Published

Opinion

AdaMS, Ch. J.

To sustain tbe issue on tbe part of tbe defendant, be introduced as a witness one Pumroy, wbo acted as deputy-sberiff in making tbe levy. It bad already been shown that tbe cattle levied on bad been placed in the possession of one Morain, wbo was feeding them. Tbe witness Pumroy, in the course of bis examination, was asked by tbe defendant a question in these words: “I will ask what steps you took, as officer, to ascertain whose cattle those were out there?” This question was objected to by tbe plaintiff, but tbe objection was overruled, and tbe witness proceeded to state a conversation between himself and Mr. Morain in relation to tbe cattle, and thereupon tbe plaintiff objected specifically to any conversations between tbe witness and Morain, but such objection was overruled. Thereupon tbe witness testified as follows: “'Well, I went there, and told Mr. Morain that I bad an execution against Harvey Eichey, and I wanted to know if be hadn’t a lot of cattle there, and he said there was quite a bunch of cattle that had been brought there by Harvey Eicbey and some other person. He said, ‘They are not all Harvey’s.’ ‘Well,’ says I, ‘do you know which one is Harvey’s, and which belongs to Mother Eicbey, or some of tbe others?’ Well, he thought be did, but be was not very positive, and I told him I did not want to levy on tbe ones I knew to be Mrs. Eichey’s. We went out, and he sent tbe boy with us, and we drove tbe cattle up. There were four or .five we were pretty well convinced were Mrs. Eicbey’s, and tbe others be said bad been put there by Harvey, and that he would suppose that they were his, or something to that effect.” The court then made this remark: “What he said about whose they were the court would permit to go to the jury as evidence only to explain what they knew of the matter.”

In admitting this evidence, it appears to us that the court erred. The evidence was introduced as an attempt to prove that the cattle levied on were the property of Richey, against whom the execution ran. The evidence showed what Morain said about Richey’s ownership. It does not appear that Morain had any knowledge of Richey’s ownership; but, if he had such knowledge, it could not properly be shown by proving what the witness heard him say. Morain should have been called. Evidence as to what the witness heard him say was hearsay evidence.

REVERSED.