Schafer v. Schafer

93 Ind. 586, 1883 Ind. LEXIS 40

• Court: Indiana Supreme Court
• Decided: December 19, 1883
• Docket: No. 10,770
• Status: Published

Opinions

Franklin, C.

— The parties to this suit are brothers and sisters, heirs of David Schafer, Sr., deceased. Appellees commenced a proceeding in 1875 for partition of the real estate claimed to descend to them from their said common ancestor. Appellant claimed .the whole of the land. This is the second time this ease has been in this court. Schafer v. Schafer, 68 Ind. 374. It was then reversed for erroneously-overruling a demurrer to one paragraph of the answer. And for the facts and pleadings in the case we refer to the opinion therein. The only error complained of now is the refusal to admit certain evidence upon the last trial.

Appellant, in one paragraph of his answer, sets up that-in 1864, in a suit against the widow, who was the second wife of deceased, he recovered a judgment for one-third of the land. Upon this trial he also recovered that third, and one-seventh of the other two-thirds.

Upon this trial appellant offered himself as a witness in his own behalf, to prove what was testified to by Jesse McMullen and Mrs. Dunham as witnesses upon the trial between him and the widow in 1864. He offered to thus prove that McMullen then testified, “that he was acquainted with old David Schafer during his lifetime.” And that is all that the bill of exceptions shows that he offered to prove as to McMullen’s testimony. This was wholly immaterial, and it matters not whether McMullen was then dead or living. He also offered to prove what Mrs. Dunham testified to, but it is not shown that she was then not living.

i The language of the offer is: “That Mrs. Dunham testified as stated by the notes taken by Judge Davis upon the trial of this cause, and we also offer in evidence the notes of ■ Judge Davis of tlie evidence of these two witnesses to prove their evidence upon the former trial.”

Filed Dec. 19, 1883. Filed March 6, 1884.

Appellant had not testified that he recollected the testimony of these two witnesses given some ten years before that time, but that he offered to testify that they had testified as the notes of Judge Davis show they had testified. This evidence was clearly incompetent. And the notes of Judge Davis not being sworn to, he not being called as a witness, and that suit not being between the same parties that this is, there can be no serious pretence that the notes are competent evidence. There was no error in refusing to admit this evidence, nor in overruling the motion for a new trial.

The judgment ought to be affirmed.

Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment of the court below be, and it is, in all things, affirmed, with costs.