Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
STANKEY v. PALMER.
This appeal is from a judgment in favor of the plaintiff in an action on a promissory note against the administrator with the will annexed of the estate of her deceased father, the maker of said note, a claim having previously been filed in the estate.
The defendant's first contention is that the court committed prejudicial error in allowing the plaintiff (respondent) to testify as to matters and facts occurring before the death of the decedent. By reason of section 1880, subdivision 3, Code of Civil Procedure, the plaintiff in such an action cannot be a witness as to any matter or fact occurring before the death of such deceased person. We have examined the record and we find that the court recognized the rule and followed it, sustaining objections made thereunder, until the defendant, by cross-examining the plaintiff as to matters and facts occurring before the death of the decedent, waived the incompetency of the plaintiff as a witness. Such incompetency may be thus waived. Deacon v. Bryans, 88 Cal. App. 322, 263 P. 371; McClenahan v. Keyes, 188 Cal. 574, 206 P. 454; Kinley v. Largent, 187 Cal. 71, 200 P. 937; Booth v. Friedman, 82 Cal. App. 174, 255 P. 222. The defendant contends, using the text of 40 Cyc. 2351, that “a party who objects to the competency of a witness introduced on behalf of his adversary does not, where his objection is not sustained, waive the incompetency of the witness by cross-examining him about matters as to which he has testified on direct examination.” This rule has no application to the situation before us. The defendant's objections were sustained on direct examination and the defendant cross-examined the witness about matters as to which she had not testified on direct examination.
Defendant's final contention is that the court erred in admitting secondary evidence as to the contents of a certain written instrument. We believe that there was a sufficient foundation laid for the introduction of such oral testimony. We find no merit in the defendant's contentions.
Judgment affirmed.
CRAIL, Justice.
We concur: STEPHENS, P. J.; WILLIS, Justice pro tem.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: Civ. 9345.
Decided: April 16, 1935
Court: District Court of Appeal, Second District, Division 2, California.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)