Meyer v. Roth

Decided July 1, 1877

California Supreme Court · decided 1877-07-01

Appeal from the District Court, Seventeenth Judicial District, County of Los Angeles. Action to recover on a written contract to pay for wool sold. One of the defenses was that the wool was not in a merchantable condition. The trial was in Los Angeles. On the trial, the plaintiff offered to read the evidence of one Yale, as taken down by the reporter on a former trial of the same case. The defendant objected because it had not been shown that the witness was deceased or out of the jurisdiction of the court. Thereupon the plaintiff proved that the witness then lived in San Jacinto, in the county of San Bernardino, whereupon the court overruled the objection. The reporter’s notes were then read. The plaintiff recovered judgment, and the defendants appealed. . Subdivision 8, of section 1870, of the Code of Civil Procedure, provides that evidence may be given upon the trial of the testimony of a witness given in a former action between the same parties, relating to the same matter, when the witness has died, or is out of the jurisdiction, or is unable to testify.

Cited in Black's (1910)’s definition of “Out of the State”

Good law ✅— No negative treatment on recordhow we know

Decided 1877-07-01

How this case has been cited

Cited by 6 later decisions — most recently February 1955

6 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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By the Court:

¶1The reporter’s notes of the evidence of the witness Yale, given at the former trial, should not have been admitted. It was shown that the witness was at the time of the trial a resident of the State, living in an adjoining county.

¶2Conceding that he was beyond the reach of a subpoena, which does not clearly appear, this fact would not authorize the admission of this evidence. We construe the provision of the Code (subd. 8, sec. 1870, Code Civ. Proc.) as merely a repetition of the rule of evidence theretofore existing, and the words “a witness out of the jurisdiction,” as meaning without the State, and so beyond the reach of any process of our courts compelling his testimony.

¶3Judgment and order reversed and cause remanded for a new trial.