Phelps v. McGloan

California Supreme Court
Phelps v. McGloan, 42 Cal. 298 (Cal. 1871)
Sprague

Phelps v. McGloan

Opinion of the Court

By the Court, Sprague, J.:

After a careful examination of the testimony, as presented by the record, I find that upon the question of possession of the demanded premises and the character thereof, from 1853 to 1863, there is direct and substantial conflict between the evidence presented by plaintiff tending to establish actual possession in Abner and Edwin Phelps, through whom she claims title, and that presented by defendants tending to establish actual possession in other parties, through whom they claim title; and as to the years 1854 and 1855, the evidence tending to establish actual possession in Abner Phelps is in direct conflict with that, tending to establish such possession in J. F. Hutton, Sr., and one Haraszthy, through whom defendant Brummagim’s testator, Biedeman, claimed title. The findings, therefore, under the uniform practice of this Court, will not be disturbed on review.

The objection to the evidence of a conversation between Abner Phelps and Hutton, Jr., in 1860, while Phelps was in possession of the premises, was not well taken. This evidence tended to explain the character of possession held by *303Phelps at the time, whether it was as a claimant of the premises, in his own adverse right, or as tenant of Hutton, Sr.

There is nothing in the point urged against the ruling of the Court, refusing to allow plaintiff to recall the witness, Abner Phelps, for the purpose indicated, which was to contradict the evidence of Mrs. Pfoff, formerly Mr. Bach, so far as the same was in conflict with the testimony already given by the witness Phelps.

Judgment and order denying new trial affirmed.

Reference

Full Case Name
EDWIN PHELPS (CHARLOTTE A. PHELPS substituted) v. JAMES McGLOAN, and JOHN W. BRUMMAGIM, Administrator, with the Will annexed, of Jacob C. Beideman
Cited By
1 case
Status
Published
Syllabus
Eindincs not Disturbed, where Confict of Evidence.—It is the uniform practice not to disturb findings on appeal as contrary to evidence, where there is a substantial conflict of evidence. Conversations ' Explanatory of Character of Possession as Evidence.—In ejectment on the ground of prior possession in plaintiff’s grantor, it is competent for the defendant to show a conversation of such grantor while in possession, tending to explain its character, whether as a claimant in his own adverse right, or as tenant of defendant’s grantor. Recalling Witness to Contradict Testimony Conflicting with his own.—It is no error to refuse to allow a plaintiff to recall a witness in rebuttal for the sole purpose of contradicting a witness for defendant on a point upon which plaintiff’s witness has already testified.