De Bock v. De Bock

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 285 We adopt the following portion of our opinion on the former hearing of this cause: "The appeal is prosecuted by defendants, under the alternative method, from a judgment against them in the sum of five thousand dollars. "It is stated in appellants' opening brief that the action was brought 'to recover damages from defendants, for enticing, inducing and persuading plaintiff's husband to desert and abandon her,' while respondent maintains that the cause of action is 'for the alienation of the affections of Louis De Bock, husband of respondent.' [1] "Preliminarily, respondent contends that this court is precluded from considering the points urged for reversal for the reason that appellants have failed to comply with the provision of section 953c of the Code of Civil Procedure, which provides that 'the parties must, however, print in *Page 286 their briefs or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court.' The trial of this case occupied six days and the reporter's transcript…

As the writer of the former opinion filed in this cause, and in view of the fact that we have reached a different conclusion from that arrived at on the former consideration of the case, I deem it proper to explain that in the original consideration I was misled by the lack of clearness of the record as to the action of the court with respect to certain evidence to which objections were, in my opinion, well taken, and which I conceived to be, in view of the slightness of the proof against the defendants, sufficiently prejudicial to require a reversal of the judgment as to all the defendants. Upon a reconsideration of the rulings upon which the reversal by the former opinion was ordered, however, I find, as the present opinion shows, that the court struck out all the damaging portions of certain testimony to which objection was made and that, as to other testimony, which I held to be erroneous and prejudicial, no motion was made to strike it out after it had been given, although there was an objection made to it after it got into the record. As the main opinion shows, in such circumstances — that is, where a proper question elicits from a witness improper testimony —…