18 Iowa 312 | Iowa | 1865
The plaintiff, on the trial, objected to the admission of certain testimony and the giving of certain instructions, on the ground that there was no proper issue of fraud made by the pleadings. The court overruled the objections, and rightly. The plea of fraud was not all that would be required in the District Court, although it has been held
And it has been repeatedly held, that a vendor or former owner remaining in possession after a bargain and sale, or other transfer absolute in its terms, will, when creditors are concerned, either be deemed such evidence of a conspiracy to affect their rights that the courts will admit the vendor’s declarations as a co-conspirator with the persons pretending t.) claim under him, and this, too, when he is in colorably as a servant, or at least it will be deemed such a connection wilh the property as to warrant the receiving the declarations as a part of the res gestee. 1 Phil. Ev. (Cow & Hill’s and Ed. Notes), note 104, p. 327; Babb v. Clemson, 10 Serg. & Rawle, 419, 426, 427; S. C., 12 Id., 328-330; Willies v. Farley, 3 Carr. & Payne, 395; Wilbur v. Stickland, 1 Rawle, 458; Martin v. Reeves, 3 Mart. (Lou.), 22, 24. But con
It was held by this court, in Russ v. The Steamboat War Eagle, 14 Iowa, 363, that the wife was a competent witness for the husband when called by him, he thereby waiving the prohibition of our statute. See, also, Motts v. Usher & Thayer, 2 Iowa, 82. The case of Karney v. Paisley, 13 Iowa, 89, was argued by appellant and sought to be reversed on the ground that while §3983 of the Revision excluded the wife, yet that section was in conflict with § 4, art. I, of the new Constitution. This court discussed that question, and decided that there was no conflict, and hence this section was in force. Both parties conceded the only question made in this case, and the court took that concession as the
Counsel for appellees in this case have, in a lengthy, able and astute argument, combatted the decision in the case of Russ v. The Steamboat War Eagle, supra. The leading error of the argument is one that has not been confined to members of the bar familiar with the common law practice, but it has too often been found on the bench, and has stood, more than any other one thing, in the way of the progress of jurisprudence, and the cordial adoption and administration of the spirit of our modern codifications. It is this: in measuring everything by, and resisting any change in, the common law rules.
Our statute (Rev., § 3978), makes every human being, of sufficient capacity to understand the obligation of an oath, a competent witness in all cases, civil and criminal. This section, then, has overturned and swept away the common law, and established a new base. To retreat to the old base in order to take observations for the fortifying and operating from the new, would be hazarding the advantages gained by the advance, and imperil the whole. Looking only to this statute so far, then it is clear that the husband and wife may be witnesses for or against each other if they have sufficient capacity.* But the statute further provides (§ 3983), that “ the husband or wife shall in no case be a witness for or against the other, except, &c.” (§ 3981), “ Neither husband nor wife can be examined in any case as to any communications made by one to the other while married, nor, &c.” (§ 3985), “ No practicing attorney, counselor, physician, surgeon, minister of the gospel, or priest of any denomination, shall be allowed, in giving testimony, to disclose any confidential communication, &c.” And then follows § 3986, “ The prohibitions
When the husband or wife is called to be examined in a case where one or the other is a party as to communications made by one to the other while married, who waives the prohibition, the husband or wife, or the opposite party ? Not the opposite party surely.
When the attorney, physician or minister is called to disclose a confidential communication, who waives the prohibition; is it the party who did not make the communication, and against whom the}' may be called? Surely not. Thus far, then, it is the party to therelation, for whose benefit the provisions were enacted, who may waive the same.
When the husband is called to testify for the wife, who waives the prohibition ; is it the wife or the opposite party ? Why, the opposite party surely (says the appellee’s counsel), because at common km the opposite party had that right. It is true he had that right at common law, for the reason that by the common law no person who was a party or interested in the issue, could be a witness against the party adverse to him or his interest, and it was held that the right of the opposite party to object to the husband or wife as witness in such case, was on the ground of interest. It was public policy which prohibited the husband or wife being called against the other. Phillips on Ev. (4th Am. ed., 3 vols.), vol. 1, p. 78; 2 Starkie on Ev., 548; Greenlf. on Ev., § 334; Gilbert’s Laws of Ev., 352; Buller’s Nisi Prius, 286. But contra, see Hasbruc v. Vandervoort, &c., 5 Seld. (9 N. Y.), 153, and authorities.
. But we have seen, that our statute .has changed the common law, and, in effect, has declared that interest shall not be a ground of excluding a witness, and, therefore, the reason of the rule allowing the opposite party to object
Again, it is objected that the language of the statute is, that “ the husband or wife shall, in no case, be a witness 'fur or against the other, except,” &e.; and it is asked, why prohibit the one being a witness for the other, if such other may waive it, as would surely always be done? It is not our duty to answer every possible question which may bo put; and, indeed, it is often very difficult to answer satisfactorily, to ourselves even, the questions necessary to bo solved in determining cases. But not an unreasonable answer to such question is this: It often happens that a husband is not the only party to a case, or alone in the issues involved; in such case, if one of the parties joined with the husband in the case and issues, should call the wife for the husband and himself, ami “in favor of” Llie issues they affirm, the husband could, under the statute, refuse to waive the prohibition and exclude the wife as a witness.
Suppose the word “for” was omitted from our statutes, could the husband, in the case put, prevent his wife from being sworn as a witness? The statute, with the word “for” omitted, would then read, “the husband or wife shall in no case be a witness against the other.” Take the case just put, and when the husband objected to his co-party in the issue introducing his wife as a witness, could he not be told that she was not offered against him, ami, therefore, he had no right to object, and no prohibition to waive? It not unfrequently happens that co-plain tiffs or co-defendants have different, though not adverse, interests in the same issue, and it may often occur that a husband, from interest as well as from feeling, may not want his wife called as a witness by his co plaintiff or co-defendant for the issues
Without attempting to answer the elaborate argument of appellees’ counsel, a majority of the court are content to follow and affirm the case of Russ v. The Steamboat War Eagle.
For the error in refusing to admit the husband as a witness, the judgment in this cause is
Reversed.