Barkley v. Bradford, 100 Ky. 304

Barkley v. Bradford

100 Ky. 304 | Ky. Ct. App. | 1896

JUDGE LEWIS

DELIVERED THE OPINION OF THE COUBT:

The only question in this case is whether W. J. Irwin and S. W. Bradford were merely sureties of Geo. L. Bradford in the note sued on; for if they were the statute of limitation bars a recovery against them. And as the jury found in their favor, under proper instructions of the court, the only inquiry is whether, as contended, there was error of court, in respect to admission or exclusion of testimony.

It appears Geo. L. Bradford, who was dead when the action was tried, gave his deposition, in which, we think, he stated distinctly they were sureties. But it is argued that the court erred in permitting S. W. Bradford, one of the defendants, to testify, after hav*306ing offered and caused read, in his own behalf, the deposition of Geo. L. Bradford.

The Civil Code, sub-section 4, section 606, provides that “no person shall testify for himself in chief in an ordinary action, after introducing other testimony for himself in chief; nor in an equitable action after taking other testimony for himself in chief.” But that is a rule of practice, not of right, and if a party appealing has not been prejudiced by violation of it, this court would not upon that ground alone reverse a judgment in other respects regular and proper.

Appellee S. W. Bradford testified only to a fact that Geo. L. Bradford had, before the trial, stated in his deposition was true, and we do not see .how he obtained an undue advantage, or appellant was prejudiced by reading the deposition before instead of after the party himself testified. For Geo. L. Bradford being unimpeached and uncontradicted, the jury would have been bound to find as they did, even if his testimony had not been supplemented by that of S. W. Bradford.

We think it was not competent for appellant, payee, to testify in regard to statements made to him by Geo. L. Bradford in regard to the attitude of Irwin, then dead, and S. W. Bradford on the note sued on in the absence of both of them. For it was to the interest of Geo. L. Bradford to fix liability of Irwin and S. W. Bradford as principals, instead of sureties, whereby his own responsibility would be lessened. And competency of the testimony can certainly not be based upon *307the fact that Geo. L. Bradford was agent of S. W. Bradford and Irwin, for the plain reason that fact had to be either assumed, or else shown by his statements without their presence.

Judgment affirmed.