81 Ind. 87 | Ind. | 1881
The complaint of the appellee is against the children and heirs of Joshua Cottrell, deceased, and seeks to enforce the specific performance of a parol contract made with the deceased in his lifetime.
The appellee called as a witness one of the defendants, Isaac Cottrell, and, in a long and involved interrogatory, stated a conversation in which the witness was given, by the appellee, a history of his claim, and asked if such a conversation did not take place. In permitting this question to be asked and answered, the court committed an error. The appellee, under the statute in force at the time of the trial, was not a competent witness, for the action was upon a contract made with the deceased ancestor of the heirs against whom the action was-instituted. It is settled that in such cases the plaintiff is not competent to testify as to matters which occurred prior to the death of the ancestor. Wiseman v. Wiseman, 73 Ind. 112. Such a method as that adopted would enable a party to get before a jury his own statement of a transaction with the deceased person. A party prohibited from testifying can not secure the benefit of his version of such a transaction in this manner. To permit such a practice would make it easy to-
The appellee was pérmitted to testify as to the statements made by him to the witness, Isaac Cottrell. This was error. A party can not, by the rehearsal of a transaction with a deceased person, place himself in a situation entitling him to-testify as to what he said to another about such transaction.
The rule allowing a party, in an action against heirs, upon a contract with their ancestor, to testify as to matters occurring subsequent to the ancestor’s death, does not permit him to recite his version of an alleged contract with the deceased, and thus get it before the jury.
John Dayton was the guardian of one of the minor appellants, and as such was in attendance at court. A motion was made to separate witnesses, and the court excluded Dayton from the court room, because he was a witness. This ruling was erroneous. In Larue v. Russell, 26 Ind. 386, it was said of the exclusion of a party: “ This proceeding is probably without a precedent. The right of a party litigant to be present during the trial of his cause, that he may be heard in his own behalij has been so long accorded by universal custom, and is so obviously necessary for the security of private rights, that
The fact that the party acts in a representative capacity does not make any difference. The guardian is bound to maintain the interests of his ward quite as earnestly and carefully as if they were his own, and his presence in court is as important as if the case were against him individually.
Other questions are discussed, but, as the judgment must be reversed for the reasons stated, we deem it unnecessary to consider them.
Judgment reversed.