The facts sufficiently appear in the opinion. This action was brought to recover the value of building material furnished defendant and used in the construction of his house, and for which he promised to pay its reasonable value. The answer denied that the material was furnished defendant, or that he promised to pay therefor, and alleged that it was sold to one Holesworth. Judgment was rendered for $1,114.04. The district court granted a new trial upon the ground of error in the refusal of the district judge to testify. The appeal is taken from this order.
During the progress of the trial and some time after the closing of plaintiff's case, the court allowed respondent to recall Mr. Holesworth for further cross-examination for the *Page 337 purpose of laying a foundation for impeachment. In the meantime, and before the witness had been recalled, the judge presiding at the trial, and by whose testimony Holesworth was sought to be impeached, after argument of counsel and due consideration, refused to be sworn and testify. Holes-worth was recalled, but counsel declined to further cross-examine, and no foundation was laid for the impeaching evidence.
The necessity of laying the foundation for an impeachment and the reason upon which it is founded were ably considered in the case of Mattox v. U. S.,156 U.S. 237.
The court said: "The authorities, except in some of the New England states, are almost unanimous to the effect that, before a witness can be impeached by proof that he has made statements contradictory or differing from the testimony given by him upon the stand, a foundation must be laid by interrogating the witness himself as to whether he has ever made such statements. Justice to the witness himself requires not only that he should be asked whether he had ever made such statements, but his attention should be called to the particular statement proposed to be proven, and he should be asked whether, at such a time and place, he made that statement to the witness whose testimony is about to be introduced. This method of impeachment was approved by this court in Conrad v. Griffey, 16 How. 46, wherein the rule is stated to be `founded upon common sense, and is essential to protect the character of a witness. His memory is refreshed by the necessary inquiries, which enable him to explain the statements referred to, and show that they were made under a mistake, or that there was no discrepancy between them and his testimony.'"
Of the rule as above announced Professor Greenleaf says: "This course of proceeding is considered indispensable from a sense of justice to the witness, for, as the direct tendency of the evidence is to impeach his veracity, common justice requires that, by first calling his attention to the subject, he should have an opportunity to recollect the facts, and, if necessary, to correct the statement already proven, as well as by a reexamination to explain the nature, circumstances, *Page 338 meaning, and design of what he is proven elsewhere to have said." (Greenl.Ev. 462.)
In Runyan v. Price, 15 Ohio St. 1, one of the subscribing witnesses to a will had died. The contestants offered in evidence his declarations respecting the capacity of the testator to make a will at the time the one in question purported to have been made for the purpose of impeaching his testimony.
"It seems to me," said the court, "that to allow the death of the witness to work an exception would be to destroy the principles upon which the rule rests, and deny the protection which it was designed to afford. * * * In relieving one party of a supposed hardship, an equally serious one might be inflicted upon the other. * * * Without, therefore, the opportunity to the witness of explanation, or, to the party against whom offered, of reexamination, we are of opinion that the supposed declarations lack the elements of credibility which they should possess before they can be used legitimately to destroy the testimony of the witness."
The subject was considered by the Supreme Court of Colorado in Ryan v. People, 21 Colo. 125, in these words: "At the trial it was sought to impeach the evidence of the witness Dulin by showing that at other times, before and after his deposition was taken, he had made statements contrary to those contained in the deposition. This offer of proof on the part of the defendant was rejected by the court, for the reason that the proper foundation had not been laid for it, the attention of the witness Dulin while upon the stand not having been called to these alleged contradictory statements, and he having had no opportunity to explain or deny the same. Counsel concede the general rule to be that a witness cannot be impeached by showing that he has made statements at other times inconsistent with his testimony, unless a foundation be first laid by interrogating the witness himself as to whether or not he has made such statements. This rule is of almost universal application. It is founded upon the soundest principles, and supported by the great weight of English and American authority. The reasons given for the rule are that justice requires that the attention of the witness should be first called to the subject, in order that he may explain or deny the alleged contradictory statements, *Page 339 and be given an opportunity upon `a reexamination to explain the nature, circumstances, meaning, and design of what he is proved elsewhere to have said.' (1 Greenl. Ev., 14th ed., sec. 462.)"
In excuse of the course pursued it is said that it would have been a vain thing to have laid the foundation for an impeachment after the judge had refused to be sworn. According to the great weight of authority the rule was established for the protection of witnesses whose veracity was assailed, and its enforcement is not a matter of form, to be changed by the hardship of a particular case.
"The true principle of the rule," said the Supreme Court of Kansas, "seems to be that the witness whose testimony is to be impeached, and the party to be affected thereby, are of right entitled to any explanation which the former can give of the statements imputed to him." (Greer v. Higgins,20 Kan. 424.)
Having reached the conclusion that it was not error, under the facts in the court below, to refuse to be sworn as a witness, counsel for respondent proceeds in his brief to the discussion of other questions made in the statement upon motion for new trial.
The record shows that the new trial was ordered "for the reason that the defendant was deprived of the testimony of Judge Curler at the former trial, and such testimony may have been material."
Both counsel concede that was the only ground considered by Judge Talbot, who heard the motion for new trial. Under these circumstances, is it our duty to consider questions raised by the statement on motion for new trial, and not considered by the judge before whom the motion was made?
"If the grounds of action of the lower court be not shown by the record," says Mr. Hayne, "the supreme court must presume in support of such action that it was upon some ground upon which it can be sustained. Thus, inWeddle v. Stark, 10 Cal. 302, where a motion for new trial was made upon two grounds — insufficiency of the evidence and errors in law — and the record did not show upon what ground the motion was granted, the supreme court affirmed the order on the ground that the evidence was conflicting, and that the *Page 340 order must be deemed to have been made on that ground. * * * But it is believed that this rule should be applied only where the record shows a general order or decision of the court below, without showing any of the grounds on which it was based. Where the order expressly states that it was made on some one ground without mentioning the other grounds, it would seem that it should be construed to mean that the order was made upon that ground only, and that the other grounds were not considered."
Again: "Where the unnoticed grounds involve questions of discretion, it is believed (although no decision has been found upon the point) that the supreme court should not undertake to determine them for the first time, but, if the case cannot be disposed of upon other points, should send it back to the court below for the orderly disposition of the matter. Unless this is done, the grossest injustice may-result. Suppose, for example, that a motion for new trial is made upon two grounds, viz., error in law, and insufficiency of the evidence, and that the court below erroneously grants the motion on the ground of error in law, but does not consider the other ground, and that there is a conflict of evidence. If the supreme court should undertake to pass upon the question of the insufficiency of the evidence, it would have to affirm the order on the ground that there is a conflict of evidence, and that the discretion of the court below in the matter cannot be disturbed. But in the case supposed the court below had never considered the evidence at all, and had never exercised its discretion. The only ground upon which it acted was erroneous, and its action would be set aside were it not for the fact that the supreme court, by undertaking to pass upon a question which the record shows was not passed upon by the court below, creates an obstacle to stumble over. Is it not manifest here that justice is defeated!" (Hayne, New Trial App., sec. 284.)
We concur in this reasoning, and think we should restrict our review to the ground upon which the order was made.
The order granting respondent a new trial should be reversed, and the cause remanded.
It is so ordered.
*Page 341MASSEY, C. J.: I concur.