Legal Opinion

Mitchell v. Haggenmeyer

California Supreme Court

Decided July 1, 1875No. 4434PublishedCited by 5 opinions

Appeal from the District Court, Seventh Judicial District, County of Mendocino. The action was commenced on the 9th day of J une, 1873, to recover judgment on a claim against the estate of Whipple, which had been rejected by the executors. The deposition of Mitchell, the plaintiff, was taken on.the 10th day .of October, 1873. It was taken on the ground that Mitchell was too ill to attend the trial. Mitchell died on the 20th of October following.

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Appeal from the District Court, Seventh Judicial District, County of Mendocino. The action was commenced on the 9th day of J une, 1873, to recover judgment on a claim against the estate of Whipple, which had been rejected by the executors. The deposition of Mitchell, the plaintiff, was taken on.the 10th day .of October, 1873. It was taken on the ground that Mitchell was too ill to attend the trial. Mitchell died on the 20th of October following. A. J. Lowell, the executor of Mitchell’s will, was substituted in his place. The cause was tried on the 30th day of July, 1874. Mitchell’s deposition…

1Opinion of the Court

By the Court :

The deposition of the plaintiff Mitchell was improperly admitted in evidence. Section 1880 of the Code of Civil Procedure, as amended, and which took effect July 1, 1874, provides that ‘ ‘ parties to an action or proceeding, or in whose behalf an action or proceeding is prosecuted against an executor or administrator, upon a claim against the estate of the deceased,” shall not be witnesses in the cause. The deposition, though taken before, was offered in evidence after this amendment took effect, and if Mitchell had been living at the time of the trial it is clear he could not…

2Cited by5 opinions

  1. Frame v. PlumbWisconsin Supreme Court · 1909
  2. Neis v. FarquharsonWashington Supreme Court · 1894
  3. McKee v. LynchCalifornia Court of Appeal · 1940
  4. Sedgwick v. SedgwickCalifornia Supreme Court · 1877
  5. Rose v. Southern Trust Co.California Supreme Court · 1918

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