Kiler v. Kimbal — 10 Cal. 267

Majority

p. 267

KILER et als. v. KIMBAL et als.

Headnote

Where an objection is taken to the admission of evidence, without a specification of the grounds of the objection, it does not merit consideration.

To entitle an objection to notice, it must not only be on a material matter, affecting the substantial rights of the parties, but its point must be particularly stated. The party must lay his finger on the point of his objection.

Where a motion is made for a nonsuit, without stating the grounds upon which it is made, it is not error to overrule the motion,

Where parol evidence is given of certain regulations of miners, and it does not appear until the cross-examination of the witness that the regulations were in writing, the proper course to pursue, if any objection is taken to the evidence, is by motion to strike it out.

Appeal from the District Court of the Fourteenth Judicial District, County of Sierra.

This was an action of ejectment to recover certain mining-claims. The defendants pleaded title. To show the interest of

p. 268

two of the plaintiffs, Smith and Conner, in the property in controversy, certain bills of sale to them were introduced, and to their introduction the defendants objected, without stating the grounds of their objection; and the objection was overruled, and the defendants excepted..

After-the testimony was closed, the defendants moved for a nonsuit, without stating the grounds of their motion, and the same was overruled, and the defendants excepted.

One of the witnesses introduced by the plaintiffs, gave parol evidence of certain regulations of miners in the vicinity of the mining-claims, in controversy, to which evidence objection was taken, without any specification of the grounds of the objection. It did not appear that the regulations were in writing until the cross-examination of the witness.

The plaintiffs had judgment, and the defendants appealed.

John M. McConnell for Appellants.

Van Clief and Stewart for Respondents.

Terry, C. J., and Baldwin, J., concurring.

The objection to the bills of sale, introduced to show the interest of Smith and Conner, two of the plaintiffs, in the property in controversy, was properly overruled. It did not merit consideration for its generality. To entitle an objection to notice, it must not only be on a material matter, affecting the substantial rights of the parties, but its point must be particularly stated. This is not only a statutory regulation, but it is the uniform rule, so far as we are aware, of all Courts of Becord. The party, as the authorities say, must lay his finger on the point of his objection to the admission or exclusion of evidence. (Practice Act, § 189; Frier v. Jackson, 8 John., 496 ; Jackson v. Caldwell, 1 Cow., 622 ; Whitesides v. Jackson, 1 Wend., 418 ; Waters v. Gilbert, 2 Cushing, 27; Covillaud v. Tanner, 7 Cal., 38 .)

For the same.reason, there'was no error in overruling the motion for a nonsuit. It is very possible that the grounds upon which the appellants now contend the motion should have- been granted, might have been obviated at the trial, had they then been stated. ,

The objection to the parol evidence, in relation to the regulations of miners, was equally defective. It was not placed on any ground. The fact that these regulations were in writing did not appear until the cross-examination of the witness; and the proper course for the defendants then to pursue, had they any objection to the evidence, was by motion to strike it out.

Judgment affirmed.