
    KNITTLE, Respondent, v. ERNST et al (KUPFER, Intervener), Appellants.
    (168 N. W. 754).
    (File No. 4344.
    Opinion filed Sept. 3, 1918.
    Rehearing denied November 4, 1918).
    Witnesses — Transactions with Deceased — “Ownership," Testimony To, Distinguished from Testimony with Deceased Concerning'— Statute.
    Plaintiff, in a suit against representatives of her deceased mother, to recover possession of a cow, was competent to testify categorically in response to the question, “Who was the owner of this cow?” “I was,” so long as she herself did not testify to matters constituting a transaction between herself and her deceased mother, from whom she had received the animal as a gift; since said question as propounded seeks simply to identify and connect .plaintiff’s title, or ownership, with the property which is the subject of the action, rather than probative evidence of abstract ownership; although she could not have supported her answer hy testimony that she had been given the cow hy heir mother. Construing Code Civ. Proc., Sec'. 486.
    Smith, J., dissenting.
    Appeal from Gregory County Court. ITon. Chas. A. Davis, Judge.
    Action by S'arah, Kniittle, against Alfred Ernst, -in which Walter H. K-upfer, as guardian -of the person and estate of Jacob Ernst, an incompetent person, .intervenes-. From a judgment f-or plaintiff, and- from an order -denying -a new trial, defendant and intervener -appeal.
    Affirmed.
    
      M. L. Parish, and B. O. Patterson, for Appellants.
    
      W. J. Hooper, fio-r Respondent.
    Appellants cited;
    Jones Commentaries- on Ev., Blue Book, V-o-1. 4, p. 710, Sec. 779 ( 791)> -anti -cases cited.
    Respondent cited:
    Hawley vs. B-ou'd, 20 S. D. 215.
   McCOY, J.

This action was instituted to recover possession of certain live stock and1 household- furniture. There wias verdidt and judgment fo-r plalihtiff/ from which defendants appeal.

Respondent claimed1 to he t-he owner of the property in question, and at the -trial, to sustain her claimi of ownership, went upon the stand and- testified as- a witness in her oiwn behalf. On direct examination she was asked; the question, “who -was the owner of this cow at the time of the commencement of this, action ?” AppeE lants’ counsel objected to the question on t-he ground ¡that the witness was -incompetent to testify as to her ownership of the property under section 486, C. C. P., -and asked leave to) -examine the witness as to her competency under the 'statute, which was granted. Whereupon appellants’ -counsel said, “Let her answer the question.” The answer -was, “I was.” Then appellants’ -counsel -interrogated the witness a-s follows:

“S-arali, you say that you .are owner. D-i-d you mean to say that you got this -cow from jour mother? A. Yes. Q. Your m-other gave her to you? A. Yes. Q. Your mother is dead? A. Yes.”

Appellant -then moved to strike the an-sw-er f-or the reason that she had not shown herself to .be qualified to testify as to ownership under section 486. This -motion to strike -was overruled. It is now cóntenidddi fey appellant ¡that t)h!i!s 'refusal of the court to strike the ■answer was error.

We are of the view that the -court committed- no error. We are of the opinion that the respondent was qualified to testify as to' ownership so long -as she herself -did not testify as to matters com s-ti-tutimg a transaction -between herself and her deceased mother. -She had tire perfect -legal right to substantiate her -cause of action toy ¡proper evidence, and to submit testimony as to her ownership, and to -submit her ■ own testimony -as ta ownership, -based upon th-e testimony of others who -were -competent to -testify. The question -of -onoership -s-uola a-s was propounded -to the -witn-ésls -in this1 -case seeks to identify an-d -connect the plaintiff’s title, -Or ownership, with the -property which is the subject of the action, and w.-as' material evidence flor the purposes of ■such 'identification, raither than probative evidence of .abstract ownership. Respondent had the right to answer the qu-esti-on -asked her toy her counsel. Hawley v. Bond, 20 S. D. 215, 105 N. W. 464; Hess v. Railway Co., 30 S. D. 538, 139 N. W. 334. She could not, however, have supported -her answer -by testimony ¡that she had1 been- given the .cow by her mother. But it w-as incumbent upon her, just as she dii-di .in this action, to introduce the testknttiy- of other competent witnesses showing -the facts and circumstances of her ownership.

After careful consideration of all the evidence submitted, w-e are of the view -that ¡the same -is -sufficient to sustain- a verdict ; whether tine -property in question .was given to respondent, by her -mother, an-d whether -delivery was made, were -purely questions of fact -to be -decided by the jury on the -evidence and .instructions of the court. Other assignments of error relating- -to- tine reception an-d rejection of -testimony are made, tout w-e -are o-f the view that no prejudicial -error exists in relation thereto-.

Judgment and- order appealed from ¡are affirmed.

SMITH, J.

(-dissenting). The fact of -ownership in this case is plainly a -conclusion -o-fi the witness -drawn from- transactions- with her deceased-mother, as to which transactions the- majority opinion as well -as th-e statute ’declares her incompetent t-o testify.

The majority conclusion, life founded upon- the rule -announced toy this court in Hawley v. Bond, 20 S. D. 215, 105 N. W. 464. T-h-e precise point 'decided in -that -case -was that 'the question as to- ownership in that case called for the statement of -a fact, and1 not cf an opinion- or -eanduisi'an of the witness. The distinction- 'between •“ownership as ia fact” arid' “ownership as -a- -eonchtsion of the witness” may bé sórh-tíwfaát difficult to define, but as applied to tran-sacfiions -donceming whiidh the witness- is competent to testify, as in Hawley v. Bond, ¡is perhaps n'oit important. B-ut when1 the witness is incompetent to testify to' the transaction upon which the ultimate fact of ownership rests-, the rule -adopted by the majority -opinión amounts to - an- abrogation lotf ;tíhe statute.  