Martin v. Garrett — 4 E.D. Smith 346

Majority

p. 346

Thomas Martin v. John Garrett.

Headnote

Where the return of a justice shows a special finding of fact upon sufficient evidence, exclusive ef testimony objected to and improperly received, and such finding is expressly and solely placed by him upon such proper evidence ; the error in admitting the illegal testimony furnishes no ground for reversing the judgment.

Appeal by the defendant from the Second District Court, in an action for rent.

Charles Sweeney and Chas. E. Shea, for the defendant.

By the Court.

Although it was not competent for the plaintiff to prove, by parol, that he was the lessee of the premises under the owner in fee, without the production and proof of the written lease, yet the justice has found, as matter of fact, (and we think the evidence warranted him in so finding,) upon the evidence of the defendant’s witness, that the relation of landlord and tenant existed between the plaintiff and defendant during the period for which rent is sought, and this finding the justice places solely and exclusively upon such evidence of the defendant’s witness. The plaintiff’s title is, therefore, not material, and the illegal testimony became wholly unimportant. It had and could le

p. 347

gaily have had no effect upon the decision. Besides, tin answer merely sets up that the rent is not due, and pay me. and set off. It was wholly unnecessary to go into the piartiff’s title.

The other objections stated in the notice of appeal rels to questions of fact, in relation to which it must suffice o say, that we think the evidence sustains the finding.

Judgment affirmed.