Gable v. Hainer

83 Iowa 457 | Iowa | 1891

Rothrock, J.

1. Witnesses: competency: transactions with decedent. The plaintiff’s intestate, Joseph Gable, was a resident of Scott county, in this state, when he died, on the first day of April, 1887. The said H. J. Gable, deceased, wag a gcm g£¿¿ Joseph Gable, and resided at Arcadia, in Carroll county, this state, where he was engaged in mercantile pursuits, such as selling goods, and buying and shipping grain. He died in October of the same year. The evidence shows, without dispute, that some time before the death of Joseph Gable his said son was indebted to him in a considerable amount. It is claimed by the plaintiff that in the-spring of the year, before the death of Joseph Gable, in pursuance of some correspondence between the-parties, the father sent to the son a promissory note of one thousand dollars, and an account which he held, against the son, to be renewed, and the note in renewal to be returned to the father; and that the note was neither renewed nor paid when the son died. Both of' the parties being dead, the principal witnesses upon whose testimony it was sought to establish 'the claim were the plaintiff, who is the widow of Joseph Gable,, and Emma Gable, his daughter.

The court appears to have had in mind section-3639 of the Code, which provides that “no'party to any action or proceeding, nor any person interested in the event thereof, * * * shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of such examination, deceased, insane or lunatic, against the executor, administrator, heir-at-law, next of kin, assignee, legatee, devisee, survivor or guardian of such deceased person.” The plaintiff, being the widow, and Emma Gable, being the daughter, of Joseph Gable, and directly interested in establishing-the claim, were not competent witnesses to any personal. transaction or communication between them and Henry dable, deceased.

2. Practice:objections to evidence not ruled upon: appeal. It is urged by counsel for appellants that said witnesses were permitted by the court, over the defendants’ objections, to testify to such transactions ana communications. Special complaint is made of the testimony of said Emma Gable. It appears that she was either a member of the family, or much of the time at the home, of Henry dable. She was examined as a witness in the case more than once. At the first examination some of the testimony appears to us to be very close to the line of exclusion prescribed by the statute. But on her last examination everything appears to have been excluded except the contents of certain letters and papers sent by her father to her brother, Henry dable. She stated positively that she acquired a knowledge of the writings without any communication with her brother. This being the testimony, it was as competent as if the communication between father and son had been by conversation with each other, and the witness a mere listener. That testimony of that kind is competent, has been repeatedly held by this court. Sweezey v. Collins, 40 Iowa, 542; Dougherty v. Deeney, 41 Iowa, 19; Johnson v. Johnson, 52 Iowa, 589; Lines v. Lines, 54 Iowa, 600. The plaintiff did not really testify to anything like a personal transaction between her and Henry dable. Her testimony, if vulnerable to any objection, is that she related some facts which were in the nature of hearsay, being communications from her husband.

The defendants moved to rule out this evidence. No ruling was made upon this motion, the court expressly reserving a ruling thereon. Whether the motion was sustained or overruled, finally, does not appear. The defendants should have demanded a ruling when the judgment was entered. We might say, further, that we clo not regard the objectionable testimony as of enough' consequence to demand a reversal of the judgment.

The defendants’ counsel present the usual objection that the judgment is contrary to the evidence. We have examined it, and conclude that the judgment ought to stand. Affirmed.