Bowers v. Schuler

54 Minn. 99 | Minn. | 1893

Mitchell, J.

The only question of any importance in this case arises over the construction of 1878 G. S. ch. 73, § 8, which provides that “it shall not be competent for any party to an action, or interested in the event thereof, to give evidence therein, of or concerning any conversation with, or admission of, a deceased or insane party or person, relative to any matter at issue between the parties.”

The principal point is whether the term “any party to an action” is meant to include every one who is a party to the record, or only those who are parties to the issue to which the testimony relates. In view of the last clause of the section, limiting the incompetency of the witness to matters relative to the issue between the parties, wé are of opinion that the statute refers only to those who are parties to the issue. The word “parties,” as there used, we think evidently refers to the party prohibited from testifying, and the party against whom the testimony would operate if admitted.

This construction is in harniony wdth the spirit and purpose of the statute, for no good reason can be suggested for excluding the testimony of one who, although a party to the action for some other purpose, is not a party to, or interested in, the issue to which his testimony relates. In the present case the issue to which the testimony of George Tischer related was exclusively between plaintiff and the defendant John Tischer. Although a necessary party to the action of partition, because the admitted owner of an undivided half of the premises, he was not a party to, and had no interest in, the issue between the plaintiff and John as to the title to one-sixth of the other undivided half. It is suggested that, inasmuch as he had mortgaged, and then conveyed, an interest in the premises which he might have had as heir of his mother, through whom plaintiff also claims, as warrantor of the title he was interested in the result of the issue between plaintiff and John. In the first place, it does not appear that he was warrantor of the title. But, if he was, his interest in the determination of the issue would be in favor of, and not adverse to, the plaintiff; and it can hardly be necessary to observe that, when a witness is produced to testify against his interest, the rule that interest disqualifies does not apply. What has been said as to the testimony of George is equally applicable to that of Fred Tischer. There is nothing in the suggestion that George was interested in the event, because, if plaintiff succeeded, there would be a partition or sale of the premises, which would not be the case if she was defeated. This is not a direct pecuniary interest in the event of the cause, which alone disqualifies a witness. Perine v. Grand Lodge, 48 Minn. 82, (50 N. W. Rep. 1022.)

(Opinion published 55 N. W. Rep. 817.)

2. Irrespective of the somewhat discretionary nature of the action of the district court upon motions of this kind, we have no doubt whatever that the court was right in refusing to require the answer to be made more definite and certain.

A pleading is subject to such a motion only where its allegations or denials are so indefinite or uncertain that the precise nature of the charge or denial is not apparent. But the uncertainty or indefiniteness here complained of is not as to what the answer alleges, or what issues it tenders, but as to what particular evidence the defendant might produce in support of it, and what the plaintiff sought was, in effect, to require him to plead the evidence. Lee v. Minneapolis & St. L. Ry. Co., 34 Minn. 225, (25 N. W. Rep. 399 ;) Todd v. Same, 37 Minn. 358, (35 N. W. Rep. 5.)

Order and judgment affirmed.