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District Court of Appeal, Second District, Division 2, California.


Civ. 13565.

Decided: October 14, 1942

Caryl Warner and Francis Gabel, both of Los Angeles, for appellant. Wood, Crump & Rogers and John Perry Wood, all of Los Angeles, for respondent.

Resting its decision not only on the oral testimony of witnesses but on some eighteen affidavits which it had received in evidence over objection, the trial court held that the evidence did not warrant a modification of a provision of a decree of divorce which had awarded to respondent, as plaintiff therein, the custody of the minor children of the parties. The affidavits offered and received were directed to the basic fact issues in controversy before the court: that of the character of the parents, their fitness to have the custody of the children and the welfare of the children. Not only did the trial court hold that the affidavits touching these matters were admissible, but it ruled that appellant was not entitled to an order of court requiring respondent to produce her affiants for cross–examination.

As we agree with appellant that the trial court committed prejudicial error in admitting the affidavits in evidence and resting its decision in part upon them, we deem it unnecessary––as we assume the trial judge will not wish to rehear the case––to set forth or consider the numerous other rulings which appellant assigns as error.

It is elemental that the issue below, pertaining as it did solely to the custody of minor children, could not have been tried wholly or in part on affidavits in the original divorce proceeding, over objection. This for the reason that evidence by way of affidavit on controverted issues of fact is an inappropriate link in the chain of proof. From time immemorial it has been a fundamental precept of the common law that testimony to sustain a cause of action, a defense thereto or any other issuable controverted fact must be given in open court or by deposition with cross–examination then and there accorded. Where cross–examination was not accorded, not only was the testimony classed as being hearsay but it was considered too uncertain and unreliable to be considered in the investigation of controverted facts, and should therefore not be received as evidence. As an affidavit is but the ex parte sworn statement or testimony of the affiant, it was accordingly inadmissible at the common law on a controverted issue of fact. The only exception which the common law recognized was in permitting a party to a cause, who was by reason of that fact incompetent to testify as a witness, to show by his affidavit the loss of an original document so as to permit the use of a copy. In short, the common law, accepting the experience of ages, regarded cross–examination of a witness or affiant as to his relation to the case or parties, his motives, if any, his means of knowledge and opportunities for information, his powers of observation and tenacity of memory as of prime importance to test the credibility and accuracy of his statements, so as to render reliance thereon safe.

Respondent, however, contends that as section 2009 of our Code of Civil Procedure1 expressly provides that an affidavit may be used upon a motion, and, as the fact issue before the court in this case was initiated by a motion, that the court rightly received the affidavits and was entitled to rest its decision wholly or in part thereon.

The contention is without merit. Not only does it ignore basic and accepted rules of evidence, but it is rested alone on the literal language of the statute without regard to the legislative purpose as disclosed by its context and its history. Moreover, the contention takes no note of the fact that the Legislature possesses no power to substitute for a hearing in open court, with a right of cross–examination, a proceeding for a hearing by affidavits and counteraffidavits, except on matters distinctly ancillary or provisional. The proceeding below was neither ancillary nor provisional. To construe the statute as contended for by respondent would be to render it unconstitutional. If the position of respondent that affidavits may always be received in support of a motion were sound, it would follow that any contested fact issue could be determined upon affidavits without the necessity of calling witnesses. All that would be necessary for a plaintiff, after the court had obtained jurisdiction of the defendant, would be to make a motion for judgment on the merits based upon affidavits annexed. And, by the same token, a defendant could procure a dismissal of the action by a like procedure. Such short cuts do not accord with due process.

The statute enumerates the only circumstances in which an affidavit may be used, i. e., as (1) a verification or (2) to prove service of certain documents; (3) to obtain certain provisional remedies and (4) to serve as evidence in certain uncontested probate matters and in guardianships after a guardian has been named; (5) upon motions and (6) in any case where the code expressly so provides. By this enumeration it is clear that the Legislature intended to exclude the use of affidavits in any other situations. Moreover, it is plain from the language used in the statute that an affidavit could not be used in a contested probate proceeding even though it was merely in support of a motion therein. That being true, it seems obvious that the statute must be limited in like manner in other contested proceedings. Cf. In re Estate of Paulsen, 35 Cal.App. 654, 170 P. 855.

A most casual reading of the statute serves to make clear that it was enacted to obviate oral testimony on certain incidental matters only “where serious and frequent inconvenience would be caused by requiring the calling of witnesses in court and where under the special circumstances there is little reason to fear false testimony and little need for the searching process of cross–examination.” Wigmore on Evidence, vol. VI, §§ 1709, 1710. No court, so far as we are advised, has ever assumed, much less held, that under statutes such as section 2009 of our Code of Civil Procedure basic and controlling issues of fact could be tried by affidavits, in whole or in part. Statutes substantially similar to section 2009 are in force in the Canal Zone, Idaho, Kansas, Kentucky, Montana, Nevada, Oklahoma, Oregon, Philippine Islands, Puerto Rico, South Dakota and Texas, but in none of the decisions construing these statutes is there the semblance of a thought favoring the view expressed by respondent. On the contrary, the Supreme Court of Idaho, in Cornelison v. Cornelison, 53 Idaho 266, 23 P.2d 252, 253, involving the identical question before us and the construction of a statute identical with ours, reversed the trial court for basing its decision on affidavits, with instructions that the question of a change of custody be rested “upon the testimony of witnesses in open court, tested by cross–examination.” For similar holdings see Wolfe v. Wolfe, 242 Ky. 162, 45 S.W.2d 1043; Passantino v. Passantino, 255 App.Div. 713, 5 N.Y.S.2d 697, and Rizzo v. Rizzo, 246 App.Div. 838, 284 N.Y.S. 853.

Moreover, we are not without controlling authority in this state to sustain the construction placed by us upon the statute, although the case was not cited to us in the briefs. In Lacrabere v. Wise, 141 Cal. 554, 75 P. 185, 186, one of the issuable facts in the detainer proceeding there involved was whether service had been made of a three days' notice. This the court held could not be shown by the affidavits of service despite the provisions of section 2009 of the Code of Civil Procedure, but had to be proved by testimony as any other disputed fact in the case. Speaking to the point the court said:

“Counsel for respondent relies solely upon the construction he places on section 2009 of the Code of Civil Procedure to support the method of proof adopted by him. That section provides that: ‘An affidavit may be used * * * to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain provisional remedy, the examination of a witness, or a stay of proceedings, etc.’; and he insists therefrom that, as an action for unlawful detainer is a special proceeding, and the notice in question is one pertaining to a special proceeding, that service of the notice on the hearing of such proceeding could be proven by affidavit under the section.

“But this section has no application to the proof of facts which are directly in controversy in an action. It was not intended to have the effect of changing the general rules of evidence by substituting voluntary ex parte affidavits for the testimony of witnesses. The section only applies to matters of procedure,––matters collateral, ancillary, or incidental to an action or proceeding,––and has no relation to proof of facts the existence of which are made issues in the case, and which it is necessary to establish to sustain a cause of action.”

The only remaining question is whether the errors mentioned, along with others not here discussed, are so prejudicial as to require a reversal in view of the provisions of article VI, section 4 1/2 of the Constitution. A reading of the record has convinced us that it cannot be said “that the justice of the cause preponderated so heavily on the side of the prevailing party that none of such errors did or could have contributed to or resulted in a miscarriage of justice.” Herbert v. Lankershim, 9 Cal.2d 409, 476, 71 P.2d 220, 253.

For the reasons stated the order is reversed.


1.  Section 2009 of the Code of Civil Procedure reads as follows: “An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, as evidence in an uncontested probate proceeding, including a proceeding relating to the administration of the estate of a decedent, also a proceeding relating to the administration of the estate of a minor or incompetent person after a guardian has been appointed therein, or upon a motion, and in any other case expressly permitted by some other provision of this code.”

HANSON, Justice pro tem.

W. J. WOOD, Acting P. J., and McCOMB, J., concurred.

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