Anthony v. Sturdivant

56 So. 571 | Ala. | 1911

SAYRE, J.

The original complaint declared upon promissory notes, alleged to have been jointly executed by W. A. and S. W. Anthony. On the first trial, the adjudicated bankruptcy of S. W. Anthony having been suggested, plaintiffs eliminated S. W. from the complaint as a party defendant, and proceeded to judgment against Phabra Anthony, as the executrix of W. A., deceased. On the appeal which followed, it was held that the mere adjudication of S. W. Anthony’s bankruptcy did not relieve him of his disqualification as a witness for plaintiffs under section 4007 of the Code. — Anthony v. Sturdivant, 163 Ala. 530, 50 South. 1028. On the return of the. case to the trial court, it was shown that since the date of the first trial the witness Anthony had received his discharge in bankruptcy, and thereupon he was again allowed to testify for the plaintiffs, notwithstanding the defendant’s objection. The question as to the competency of the Avitness is again presented for review.

By his adjudication and discharge in bankruptcy, S. W. Anthony became civiliter mortuus as to all previous dischargeable debts and liabilities. A moral obligation to pay still exists, and this, coupled Avith the antecedent valuable consideration is sufficient to support an unequivocal neAV promise to pay, but his old debts have been extinguished by operation of law, and no longer exist. — Griel v. Solomon, 82 Ala. 85, 2 South. 322, 60 Am. Rep. 733; Wolfe v. Eberlein, 74 Ala. 99, 49 Am. Rep. 809. By his discharge and his elimination from the case, the original disqualifying liability of the witness was removed by a decree of the law. — Frow v. Downman, 11 Ala. 880; Reynolds v. Callaway, 31 Grat. (Va.) 436; Pattison v. Cobb, 212 Pa. 572, 61 Atl. 1108; Murray v. Judah, 6 Cow. (N. Y.) 484; 1. Greenl. Ev. (16th Ed.) p. 914. The discharge operated alike, whether the proceeding was voluntary or involuntary. The Avitness no longer had a pecuniary interest in the result of the suit; he had in legal contemplation nothing to gain or lose by the judgment to be rendered, nor would the record be legal evidence for or against him in any other action. — Oliver v. Williams, 163 Ala. 376, 50 South. 937. Plaintiffs’ case rested upon the evidence of the Avitness that he had signed the name of his deceased co-obligor to the notes in suit, having authority so to do. Defendant’s testimony tended to shoAv that the Avitness had no such authority. Noav, then, the appellant suggests that if the Avitness had forged the name of his co-obligor, in pursuance of an understanding betAveen the plaintiffs and the witness that the latter should share in the spoils, the plaintiffs would thus be allowed to evade the clear purpose, if not the exact letter, of the statute. The purpose of the common-law rule of exclusion, and of the statute, so far as it preserves the rule of the common law, is to remove the temptation to perjury. But appellant’s rule would exclude all witnesses from testifying as to transactions with deceased persons, for all witnesses may be exposed to temptations, other than such as are directly offered by the result of a suit. The interest supposed is not an interest within the contemplation of law; for the rule is “that the interest which will render a witness incompetent to testify must be some legal, certain, and immediate interest in the result of the suit itself, or in the record thereof as an instrument of evidence to support his own claims, or to protect him from an admitted liability.” — Poe v. Dorrah, 20 Ala. 288, 56 Am. Dec. 196.

Plaintiffs are described in the complaint as doing business under the firm name and style of the Bank of Camp Hill. The notes sued upon aggregate $1,049.59, without interest. In the schedule of his liabilities filed by the witness in the bankruptcy court, one item appeared as follows: “Bank of Camp Hill, Camp Hill, Ala., accounts and notes, $1,100.00.” We think this a sufficient prima facie showing that the witness’ liability on the notes in suit was scheduled, and so fell within the decree of discharge.

The transcript of the record of the proceedings in the court of bankruptcy was duly certified, and was properly admitted in evidence to rebut the prima facie incompetency of the witness.

It has been held that a witness may not testify to the mental status, the cognition, of another. — Bailey v. State, 107 Ala. 151, 18 South. 234. But the testimony of the witness Anthony that his father, W. A. Anthony, defendant’s testator, knew about some notes at the bank — not the notes in suit — was so remote from any issue proposed that it is hardly to be conceived that it affected the mind of the jury in reaching a conclusion. The ruling, if error, was harmless.

The rulings of the court below were free from reversible error, and its judgment will be affirmed.

Affirmed.

All the Justices concur.