The statute plainly gives a litigant the right to have the testimony of the trial judge in a case pending before said judge.
Comp. Laws 1900, sec. 3481, is as follows; "The judge himself, or any juror, may be called as a witness by either party; but in such case it shall be in the discretion of the court or judge to order the trial to be postponed, or suspended, and to take place before another judge or jury."
The counsel of respondent informed the court in due time that he desired to have the testimony of the trial judge in the case, and actually called said judge as a witness.
The judge refused to testify, and in refusing, among other things, said: "I believe any error, if it should be error for me to refuse at this "stage of the trial, to testify as a witness — if this shall be error, it is error that can be corrected as a matter of law upon the basis of newly discovered evidence on motion for a new trial, unless the facts are such as warrant the court in saying that due diligence has not been exercised on the part of either of the parties who shall move for a new trial in the matter of getting the testimony of the judge. If I have not the right arbitrarily to refuse to be sworn and give testimony in this case, it is a matter of right that the demand of one of the parties to this case that I shall testify be respected and granted as a matter of right that will be grounds for reversal upon a matter of law, and neither party will suffer materially, the case having proceeded thus far, by going on with the case to completion, and letting the error, if any, be corrected in a statement on motion for a new trial. However, acting as the judge in this case, if I absolutely refuse to be sworn and testify, and it shall appear that this testimony was discovered too late to be used upon this trial, or that it can't be used, because, acting as judge, with the power in my own hands of refusing or consenting to be sworn, I refuse to testify; and if it could be shown that it can thereafter be produced upon a trial of the case, or would be proper to be produced thereafter — why the motion for a new trial would be granted upon that ground."
In the majority opinion it is not denied that a litigant has *Page 342 the right to the testimony of the judge presiding at the trial of a cause, but it is therein said: "During the progress of the trial, and some time after the closing of the plaintiff's case, the court allowed respondent to recall Mr. Holesworth for further cross-examination for the 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. Holesworth was recalled, but counsel declined to further cross-examine, and no foundation was laid for the impeaching evidence."
Then, in said opinion, it is held that, because the technical foundation was not laid for the impeaching evidence, such evidence was inadmissible and immaterial.
I cannot agree to that.
See what a position that was in which respondent's counsel found himself.
The trial judge had already informed counsel that he would not testify in the case; indeed, had formally ruled that he would not testify, and to said ruling respondent took exception.
I think counsel for respondent had the right, and it was his duty, to ascertain whether he had impeaching evidence, before he attempted to lay the foundation for such evidence. Then, knowing he had no evidence with which to impeach, why should he lay or attempt to lay a foundation for an impeachment that he knew he had no evidence to make! His position was, indeed, an unhappy one. Under the view taken of the case by the majority, if he did not lay his foundation, he could not impeach; and, if he did attempt to lay said foundation, he ran a risk of great magnitude.
It was known to all that, by the refusal of the trial judge to testify, impeaching evidence could not be obtained. Under such circumstances the witness could have made such answers as he chose to the questions laying the foundation for impeachment, and counsel for respondent would have been helpless. I think no one had the right to put counsel for respondent in such a position; and that, as he could not get the impeaching testimony, and knew that he could not get it, *Page 343 he was excused from attempting to make the foundation for impeachment.
Counsel for appellant could have well argued to the jury the attempted impeachment and its failure, thus prejudicing the case. "The law does not require a vain thing to be done," and to lay the foundation for an impeachment under such circumstances would have been wholly a vain thing. Respondent, under the statute, had a right to the testimony of the trial judge. Of this right he was deprived, and I think without fault of his; and therefore I think the trial court acted properly in granting a new trial.
In my judgment there is another objection to the opinion of the majority in this ease.
In his motion for a new trial respondent stated several grounds therefor. The trial judge passed upon but one of those grounds, to wit, the one above discussed, and the same one decided by the majority of this court. The trial judge granted a new trial to the respondent on this ground alone, and this court, by the majority opinion, reverses the trial judge's order granting a new trial, and not in any respect passing upon the other grounds for a new trial urged by respondent. The effect of this order of reversal is to deny respondent a new trial, and the case ends adversely to him, and he can never know whether his other grounds for a new trial were good or bad. Some of the other grounds for new trial urged by respondent cannot, in my opinion, be said to be so destitute of merit as not to require consideration of both the trial court and this court, One I shall merely mention, to wit, the insufficiency of the evidence to sustain the verdict of the jury. I think the respondent was at least entitled to the judgment of the trial court on this question. He did not get it, and now, by the opinion of the majority, as it seems to me, he never can get it.
The case cited in the majority opinion is a case in which the trial court made an order granting a new trial, and the appellate court affirmed the said order, and sent the case back for new trial, thus holding that litigants had the right to have all their grounds of new trial passed upon. The contrary is the fact in this case. The trial court granted the motion for new trial, but passing on but one point, thinking that point *Page 344 sufficient; and this court reverses the order of the trial court, thus denying to respondent a new trial; and, if he has not a new trial as stated above, the litigation ends adversely to him, although several of the grounds urged by him for a new trial have never been passed upon or noticed by either the trial court or the appellate court. Thus the very evil pointed out by Hayne in his work on New Trial, cited in the majority opinion, is inflicted upon the respondent.
For the foregoing reasons I dissent from the judgment of the majority in this case, and think that the order of the trial court granting a new trial should be affirmed.