Appeal, No. 38 | Pa. Super. Ct. | Apr 12, 1897
Opinion by
On September 2,1871, E. S. H. Cobb gave to Butler Hamlin a judgment note for $533.21, payable one day after date, which amount was reduced by payments made at different times so as
On August 10, 1880, Butler Hamlin assigned this judgment to Isaac W. Cobb, a son of the defendant, and on the same day E. S. H. Cobb agreed in writing, “ that there is due unpaid on the above stated judgnient the sum of three hundred and ninety-six and 41/100 dollars and four and 25/100 dollars cost and interest from date, and that I have no set-off either legal or equitable against the same.”
An amicable scire facias was filed and judgment entered thereon to No. 504, April term, 1885, and a lilce judgment entered to No. 569, April term, 1890. January 14, 1895, the death of Isaac W. Cobb was suggested of record and the appellees became the legal plaintiffs.
The same day the executrix of E. S. H. Cobb was substituted on record for the defendant and presented her petition to the court, alleging that the debt represented by this judgment was full paid by E. S. H. Cobb to Isaac W. Cobb, and other matters of defense not important to the disposition of this case.
After a hearing, the judgment was opened and “ this issue awarded to be made up by the plaintiff declaring in assumpsit on the note and defendant pleading payment with leave thereto.”
On the trial a verdict was -returned for the defendant. A rule for a new trial was granted and discharged.
Fourteen assignments of error are presented for our consideration, but the ones affecting the competency of the defendant’s witnesses, Mrs. Jodry and Mrs. Flory, daughters of E. S. H. Cobb and sisters of Isaac W. Cobb, will control the judgment as entered on the verdict.
We do not have before us a copy of the will of E. S. H. Cobb to determine the exact interest of these witnesses but find it decided by the court, without exception or denial, that “ under their father’s will after payment of debts and the right of dower to the widow, the balance of his estate was left to his surviving children — share and share alike.”
When Mrs. Jodry, was offered as a witness by the defendant, objection was made to her competency; a release was exhibited to the court under objection, and to determine the good faith of the release the witness was interrogated by the learned trial judge, who held “without passing finally on the question
The witness was examined at length, and at the conclusion of her cross-examination, counsel for appellees moved to strike out the evidence, which motion Avas overruled, an exception noted, and bill sealed. (1st, 2d, 3d and 4th assignments of error.) The Avibness was clearly incompetent without the release, and in accordance with the provisions of section 6, of Act of May 23, 1887, P. L. 158, the trial judge decided, as a preliminary question in favor of the good faith of the release or extinguishment of interest, to enable the witness to become fully competent, and refused to strike out the evidence, which action was fully Avarranted after inspection of the paper in connection Avith her testimony as to consideration and motive, but in submitting the case her credibility was fairly left to the jury: Turner v. Warren, 160 Pa. 336" court="Pa." date_filed="1894-03-19" href="https://app.midpage.ai/document/turner-v-warren-6242101?utm_source=webapp" opinion_id="6242101">160 Pa. 336.
The fifth and sixth assignments relate to the testimony of Mrs. Flory, who was similarly situated as Mrs. Jodry, and her release in like form made her competent. The assignments from nine to fourteen inclusive would not determine the final judgment, and the facts were fairly submitted in a charge which presented the case fairly to the jury.
As stated by the court, “ unfortunately the original parties, Isaac and his father, are now both dead. No doubt their testimony AArould make all things clear to us, but after this long lapse of time and their departure from this life we have to search for the truth as best we may.”
The issue is between the members of a family and has developed the acerbities usual to such controversies.
The testimony of Mrs. Flory and Mrs. Jodry was of great weight, and with other witnesses fully justified the verdict.
The assignments of error are overruled and the judgment is affirmed.