Schultz v. McLean

18 P. 775, 76 Cal. 608, 1888 Cal. LEXIS 946

• Court: California Supreme Court
• Decided: June 19, 1888
• Docket: No. 11150
• Status: Published

Opinion

Thornton, J.

The court below erred in allowing the-following question to be put by plaintiffs to Waymire,, their attorney in this case, who was called by them:.: “What statement did Schultz make to you in regard to-the contract which was made between him and McLeam at the time he first consulted you in regard to this suit!;, and before you draughted the complaint? I want to know whether the statement made to you was the same statement made here on the stand.”

And also erred in admitting the answer to the foregoing question.

Schultz went to Waymire and made the statement inquired about to him in regard to his case. Neither of the defendants was present when this statement was made. If such a statement is admissible, a party can make evidence for himself. For what reason or on what ground the court admitted it we cannot conjecture.

For the foregoing error, the judgment and order denying a new trial must be reversed, and the cause remanded.

No judgment has been entered or rendered either against or in favor of defendant Robinson. The cause is not then disposed of as to him. (Diggins v. Reay, 54 Cal. 526.) The court should have passed on the cause as to all the defendants.

Judgment and order reversed, and cause remanded.

McFarland, J., Searls, C. J., McKinstry, J., Paterson, J., and Sharpstbin, J., concurred.