33 Mo. 349 | Mo. | 1863
delivered the opinion of the court.
This suit was brought by Alexander against Trundle and Shortridge. Trundle did not answer. Shortridge answered. There was no interlocutory judgment rendered against Trundle. The record shows the appearance of “ the parties,” the empannelling of a jury “to try the issue joined,” the verdict of the jury “for the plaintiff” and judgment thereon against “ said defendant.”
In the course of the trial Shortridge offered his co-defendant, Trundle, as a witness. The plaintiff objected to him because he was a party defendant on the record. The objection was sustained by the court, and Trundle was excluded from giving any testimony in the cause.
The decision of the court was wrong. The witness should have been sworn, and then the admissibility of the testimony it was proposed that he should give would properly come up for consideration. (Kleinman v. Boernstein, 32 Mo. 311.)
He was competent to testify to some things, and we must presume that he was called to give lawful testimony.
What the evidence may be at a new trial we cannot know, and therefore think it unnecessary to say anything about the instructions given at the first trial.
Judgment reversed and case remanded.
