McMurray v. Ennis

Headnote

Evidence—Code Crv. Peo., § 829—Waiver.

In an action by an administrator to recover moneys paid after the death of Ms intestate to the latter’s daughter on checks drawn by him, a question put to the defendant as to whether her father ever promised to repay certain money to her is inadmissible under § 829 of the Code, and the plaintiff’s .right to object thereto is not waived by failing to object to her testimony that her father owed her such money.

Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial on the minutes, on the exceptions taken, and on the ground that the verdict was contrary to the evidence and contrary to law.

Action to recover moneys paid to defendant after the death of plaintiff’s intestate on checks drawn by him in favor of defendant, who was his daughter.

Defendant was called as a witness by plaintiff, and testified that she received the checks about two weeks before her father’s death, and further stated that she did not know the checks were in existence till she got them, and that she gave her father nothing for the checks, and had never asked him for them. On cross-examination by her counsel, she testified that at the time the checks were delivered to her her father owed her $2,500. Plaintiff then examined her as to the transaction out of which this debt arose, and she was then asked by her counsel: “ Did your father ever promise to repay that money to you ?” This was objected to and excluded.