Opinion
Rehearing Denied Oct. 25, 1943.
Hearing Granted Nov. 29, 1943.
Appeal from Superior Court, Los Angeles County; George A. Dockweiler, Judge.
Action by George S. Tabata against Millard Murane, executor of the estate of Charles W. Zorn, deceased, to establish a creditor’s claim against the estate. Judgment for plaintiff, and defendant appeals.
Reversed.
COUNSEL
Tudor Gairdner, of Los Angeles, for appellant.
Russell H. Pray, John Y. Maeno, and S. J. Nordorf, all of Long Beach, for respondent.
OPINION
McCOMB, Justice.
From a judgment in favor of plaintiff after trial before a jury in an action to establish a creditor’s claim against the estate of defendant’s testator, defendant appeals.
There is also a purported appeal from an order denying a motion for a new trial.
The essential facts are these:
On August 22, 1941, defendant qualified as the executor of the estate of Charles W. Zorn, deceased. On November 24, 1941, within six months from the date of the first publication of notice to creditors, plaintiff filed with the clerk of the probate court a written claim against the estate of defendant’s decedent for the sum of $21,115.62. On March 5, 1942, defendant as executor of the estate of Charles W. Zorn rejected in writing plaintiff’s claim. Thereafter on April 2, 1942, the present action was commenced to establish plaintiff’s claim that he was a creditor of the estate of Charles W. Zorn.
Defendant relies for reversal of the judgment, among others, on this proposition:
The trial court committed prejudicial error in permitting plaintiff over objection that his testimony was inadmissible under the provisions of section 1880 of the Code of Civil Procedure to testify as to matters of fact occurring before the death of decedent Zorn.
This proposition is tenable and is governed by the following pertinent rules of law:
(1) A party to an action against an executor upon a claim or demand against an estate of a deceased person is incompetent to give testimony as to any matter of fact occurring before the death of the decedent. Sec. 1880, subd. 3, Code Civ.Proc.; Stuart v. Lord, 138 Cal. 672, 676 et seq., 72 P. 142; Deacon v. Bryans, 88 Cal.App. 322, 329, 263 P. 371.
(2) By cross-examining a witness a party does not waive objections to questions asked a witness on direct examination, nor by cross-examining does he waive the right to object to improper questions asked the same witness on redirect-examination. Jameson v. Tully, 178 Cal. 380, 384, 173 P. 577; Estates of Boyes, 151 Cal. 143, 149, 90 P. 454; Lucy v. Lucy, 22 Cal.App.2d 629, 633, 71 P.2d 949.
The evidence discloses that plaintiff claimed that he had loaned money to decedent during his lifetime, which decedent had agreed to repay him. On the other hand, defendant contended that plaintiff voluntarily paid debts of decedent without any promise upon the part of decedent Zorn to repay plaintiff the money thus advanced.
Over defendant’s objections that such testimony was inadmissible under the provisions of Section 1880, subdivision 3, of the Code of Civil Procedure plaintiff was permitted to give the following testimony:
(a) "When Charlie Zorn asked me for this loan of $91.00 on March 18th, he asked me to keep this place blank. Then he took it over, evidently, to the Seaboard National Bank to make the payment and he filled in this payable part himself. It is his handwriting. Then they accepted this check at the Seaboard as payment, as I found his endorsement not on the back of the check. Mr. Zorn said they didn’t ask for it, so that is why."
(b) "Q. Was there a conversation had with reference to that between Mr. Zorn, in your presence, and Mr. Mooney? A. No, sir.
"Q. Now, did you overhear a conversation that Mr. Mooney had with Mr. Zorn in which Mr. Mooney asked Mr. Zorn whether he had any further outstanding obligations? A. No, sir.
"Q. And did Mr. Mooney at that time ask you if you knew any outstanding obligations of Mr. Zorn? A. Absolutely not, no, sir."
The foregoing testimony was clearly inadmissible under the provisions of rule 1, supra, and the trial judge erroneously overruled defendant’s objections thereto.
Such error was prejudicial to defendant since:
(1) The testimony set forth in paragraph (a), supra, if believed by the trial jury would have tended to support plaintiff’s claim that the transaction was a loan and that plaintiff had not voluntarily paid debts of the decedent, and
(2) The testimony set forth in paragraph (b), supra, contradicted the testimony of defendant’s witness, Rex Mooney, which was in part as follows:
"Q. By Mr. Gairdner: Now, who else was present at this conversation other than yourself and Mr. Zorn and Mr. Tabata? A. No one.
"Q. And where was this conversation had? A. In Mr. Zorn’s bedroom.
"Q. Where? At what address? A. On the second floor in the northwest room of 101 South Fuller Avenue.
"Q. And when was this conversation? A. At 5:30 in the afternoon of the evening before he passed away.
"Q. Now, will you relate that conversation? A. Yes, sir. I handed Mr. Zorn the paid chattel mortgage secured by the furniture company together with the residue of the money due him. Mr. Zorn and Mr. Tabata were seated at the foot of the bed eating dinner. I handed Mr. Zorn these papers and the money in the presence of both, ‘Now, this, as I understand it, pays all of your outstanding indebtedness. You are liberty to dispose of the furniture, and as you have stated, Mr. Zorn, that you will apply the money received from the furniture on your duplex dwelling, do you know of any other outstanding indebtedness at this time?’
"The Court: That is what you said to Mr. Zorn? A. Yes, Sir. Mr. Zorn said, ‘No, sir. I thank you for your kindness,’ and said that ‘When I get my note for the twelve hundred and some dollars secured by the trust, get the money on that, I will be able to live without the burden of debt and worry on my mind.’ And I asked Mr. Tabata if he knew of anything else outstanding that should be paid, and he said, ‘I know of nothing.’ And I said good bye and walked out the door."
If the trial jury believed plaintiff’s testimony, it of necessity destroyed the effect of Mr. Mooney’s testimony, wherein he testified in substance, among other things, that plaintiff had stated in the presence of decedent and the witness that he did not know of any unpaid and outstanding debts of Mr. Zorn. It is clear, however, that if Mr. Mooney’s testimony had been submitted to the trial jury uncontradicted, and the jury had believed it, the jury could not have properly returned a verdict in favor of plaintiff for the reason that, under Mr. Mooney’s statement, plaintiff had admitted in effect that decedent did not owe him any amount of money.
In view of our conclusions, it is unnecessary for us to discuss other points urged by defendant as grounds for reversal of the judgment.
An order denying a motion for a new trial in a civil case is non-appealable. (See 2 McKinney, New Cal. Digest (1930) 129, Appeal and Error, Sec. 74, and Supp. thereto.) Therefore the purported appeal from the order denying the motion for a new trial is dismissed.
For the foregoing reasons the judgment is reversed.
MOORE, P. J., and W. J. WOOD, J., concur.