Fitzgerald v. Livermore — 2 Cal. Unrep. 744

Majority

p. 744

FITZGERALD v. LIVERMORE and Others.

No. 11,322;

February 25, 1887.

13 Pac. 167.

Headnote

Witness—Husband and Wife.— In an Action for the Recovery of Personal Property, the admission of the testimony of plaintiff’s wife against him, without his consent, is ground for reversal, under the Code of Civil Procedure, section 1881.

APPEAL from Superior Court, Alameda County.

F. B. Ogden for appellant ; Sam. B. Wiggin for respondent.

This is an action for the recovery of personal property. The wife of the plaintiff was called as a witness for the defendant, and gave testimony against the plaintiff without his consent. Her testimony was material—• in fact, covered nearly all the matters included in the findings of the court. The ruling admitting the testimony over plaintiff’s objection was duly excepted to. We think the evidence in regard to the proceedings in insolvency was incompetent, and the objection on that ground should have been sustained. It is plain that the findings would not support a judgment for plaintiff.

Judgment and order reversed and a new trial ordered.