Omaha daily bee., 1902-04-01

being taken up in arguing the question Of
whether Mr.. zimmsn would be permitted
to resume his testimony. Attorney Mors-
man Of the telephone company argued as
follows:
"Mr. Mcintosh cannot be permitted to
lmpeach his own witness (Elbourn), your
honor, by calling another witness to tes-
tify to something different"
Attorney Mcintosh said: II will admit
that, but will that prevent us from getting
at the truth? This witness is not called
for the purpose Of impeaching Mr.. Elbourn,
but that he may testify to what took place
before the Board Of Equalization"
Attorney Morsman's objection was over
ruled. Then Mr.. Morsman interposed an
other objection to the effect that oral tes-
timony could not be introduced to con-
tradict the record, which is held by courts
generally better than oral evidence.
Question OF nor
To this Attorney Mcintosh spoke in part
as follows:
your honor, this is SIMPLY a question Of
memory either way we take It. On the one
hand we have the memory Of Mr.. Elbourn,
who, after the lapse Of a month,
and after he finds that the entry will be
needed in the trial of a case, presumes TO
enter in the journal something he alleges
took place before the board. On the other
hand we have the memory Of Mr.. Zimman
on the same subject, which should certainly
be as good. The record, Mr.. Elbourn ad-
mits, was made from no minutes taken at
the time. l shall prove by expert testimony
when the proper time comes that the pencil
minute agreement with Wead' was made
with a pencil different from the kind the
other minute were taken in. 1t would be
unjust, it would be ruinous, II the city
clerk, trusting to his memory for
a month and then writing down Just what
he sees At TO write down, could close the
mouths Of the entire world against a record
SO made"
He then cited several authorities to show
that mutilated records had several times In
the past been excluded by courts to make
way for oral testimony. Court then ad-
iourned for the noon recess.
Zimman Answers Questions.
At the opening of the afternoons session
Attorney Mcintosh resumed the amir
ton of Councilman Zimman.
Were you present during all OF the time
the city council sat as a board Of equaliza-
tion? p"
Yes, sir"
Were you there when Councilman Has
call made his motion to the effect that each
side In the corporation tax controversy be
allowed an hour and a half only in which to
present and argue their case?'N
II was"
And the record shows that that motion
carried resumed Mr.. Mcintosh. Nov
what happened Immediately after that?"
speeches were made by the corporation
lawyers and by members and representa-
tives OF the Real Estate exchange"
Were any witnesses sworn or exam
ined?"
mo, sir"
WAS any evidence taken?"
Attorney Webster objected to this ques-
ton on the ground that II speeches were
made they took the place of testimony.
Statements Of that kind" he said. ARE
Just as binding on the board as though evil
dence was taken in a more formal way"
His objection was overruled.
Mr.. Zimman answered that no evidence
had been taken.
Court adjourned until Wednesday morn
ing, as the supreme court convenes Tues
day and several Of the attorneys have cases
before it. The present estimate is that the
tax mandamus hearing will conclude about
Of this week.