Emerson v. Quinn , 79 Idaho 358 ( 1957 )

On Petition for Rehearing

In his petition for rehearing, respondent complains that the decision of this court awarding the custody of the minor children to appellant is based in part upon matters which took place prior to the entry of the modification decree on January 20, 1956. Respondent alleges that by considering such evidence this court failed to give full faith and credit to the Nevada decree; and alleges further, that in considering whether a change of conditions had occurred justifying a change of custody, the court could not consider evidence of matters occurring before such modification decree was entered.

The evidence of matters occurring prior to such modification decree bearing upon the alienation of the affection of the children was admitted without objection. It showed the beginning of a course of conduct by respondent which continued and brought about the present serious impairment of the affection of the children for their mother. Furthermore, respondent by his evidence, admitted without objection, also went into considerable detail as to acts and conduct of appellant affecting the right to have the custody of the children which occurred prior to such modification decree.

The decision of this court in no way denies full faith and credit to the Nevada decree, as no issues litigated in Nevada are reconsidered or redetermined by this court.

The evidence of which complaint is made having been admitted without objection is in the case for all purposes and may not be ignored. The general rule is laid down in 88 C.J.S. Trial § 150, page 294, as follows:

“Evidence to which no objection is made is properly in the case for all purposes and may be considered, although it would have been excluded had objection been made; such evidence is entitled to its full and natural probative effect.”

In Naccarato v. Village of Priest River, 68 Idaho 368, at page 372, 195 P.2d 370, at page 373, we said:

“Evidence introduced without objection stands as evidence in the case for all purposes. Angelus Securities Corp. v. Chester, 128 Cal.App. 437, 17 P.2d 1016; Hamlin v. University of Idaho, 61 Idaho 570, 574, 104 P.2d 625. And the same is sufficient to support a finding. Powers v. Board of Public Works, 216 Cal. 546, 15 P.2d 156.”

The petition for rehearing is denied.

KEETON, C. J., and TAYLOR and SMITH, JJ., and BAKER, D. J., concur.