Duffy v. Blake

Citations

• 91 Wash. 140
• 157 P. 480
• 1916 Wash. LEXIS 1030

Syllabus

<p>Evidence — Former Trial — Identity of Parties and Issues — Statutes. Evidence given at a former trial in an action upon a note by a holder in due course is not admissible in a subsequent action by the maker against the payee for fraud in its procurement, under Rem. & Bal. Code, § 1247, authorizing the use of a certified copy of the testimony of an absent witness given at a former trial of the same cause, in any civil action between the same parties relating to the same matter.</p> <p>Same — Former Trial — Parties — Privity. The fact that two parties in two different suits were interested in proving or disproving the same facts creates no privity between them; as the ground of privity is property and not personal relation.</p> <p>Same — Former Trial — Identity of Issues. There is no identity of issues in two actions, so as to make testimony at the former trial admissible in the other, where in the first action, upon a promissory note, the only issue was whether plaintiff was a holder in due course, making the question of fraud in its procurement immaterial, and the second action was by defendant in the former, for damages for the fraud of the payee.</p> <p>Same — Former Trial — Notes op Testimony. The stenographer’s evidence as to the testimony of an absent witness, given at a former trial, is inadmissible where the witness did not refresh her memory from her shorthand notes, hut read directly from a transcript of the notes made by herself or dictated to a phonograph.</p> <p>Appeal — Review—Error Assigned by Respondent. Error cannot be urged by respondent, in the absence of any cross-appeal.</p>