51 Cal. 618 | Cal. | 1877
Section 1880 of the Code of Civil Procedure, which took effect July 1, 1874, in defining what persons shall not be witnesses, excludes “parties to an action or proceeding, or in whose behalf an action or proceeding is prosecuted against an executor or administrator upon a claim or demand against the estate of the deceased.” The present action .¡is against .an administratrix to establish a demand against the estate, and for the purpose of this decision we shall assume that Cobb, one of the makers of the note sued upon, was a party defendant. At the trial, the administratrix offered Cobb as a witness on her behalf, and proposed to prove by him “what, if anything, had been paid thereon, and how paid; ” but the court refused to permit Cobb to testify as a witness for the administratrix, on the ground, as we infer, that he was incompetent under the provision of the Code above quoted. This ruling is assigned as error. The languáge of the statute is very broad, and if literally construed, might exclude all parties to the action, whether called to testify for or against the estate. But to give it
Judgment and order reversed and cause remanded for a ■ new trial.