21 Colo. App. 307 | Colo. Ct. App. | 1912
Appellee, plaintiff below, filed its claim consisting of two promissory notes in the probate court of Gilpin county, against tlie estate of James A. Gilmour, deceased. The claim was allowed by the county court, and on appeal by the administratrix to the district court, judgment again went in favor of appellee.
1. The principal witnesses called by appellee on the trial in the district court were H. J. Hawley, who was an officer and stockholder of appellee, and Charles E. Wiley, a director and stockholder in said corporation. Their testimony was essential to a recovery in the' case under any view that may be taken.
Immediately after each of these witnesses were sworn, appellant, by her attorneys, objected to his competency on the ground that they were disquali.fied under sec. 7267 R. S. That they were so disqualified is apparent. But appellee insists that their disqualification was waived by the fact that appellant made no objection to their being sworn; in other words, raised the objection after the oath had been administered, but before any question whatever had been propounded to the witness. It relies upon the case of Milsap et al. v. Stone, 2 Colo. 137. In the
In the case of Snow v. Batchellor, 8 Cush. 513, cited in the Milsap case, it appears (a) that the witness objected to was not incompetent, and (b) “that the objection was not taken to the competency of the witness on the ground of his being an endorser of the writ at the trial.”
In the ease of Donaldson v. Taylor, 8 Pick. 390, also cited in the Milsap case, it appears (a) that the evidence admitted was not objectionable under
Starlde on Evidence is also cited in the Milsap case. In Yol. 1, p. 136, (Ed. 1812) note u., we find the following:
“The ancient doctrine on this head was so strict that if a witness were, once examined in chief, or even sworn in chief, he could not afterwards be objected to on the ground of interest. This rule has been relaxed for the sake of convenience.”
The following additional authorities we believe support the rule we have announced:
Jacobs v. Layborn, 11 Meeson & Welsby 681-9; Bradner on Ev. (2nd Ed.) 164; Rapalje’s Law of Witnesses §§173-1; Phillips on Ev. Yol. 1, *p. 99; Taylor on Ev. (1th Ed.) Vol. 2, §§1211-2; Enc. of Ev. Vol. 3, p. 171 et seq.
Mr. Rapalje, in commenting on the time when the objections should be raised, says: .
“But the better and more approved practice now is to swear the witness-in-chief and bring out the facts showing his interest, either on direct or cross-examination. ’ ’
That the trial court committed reversible error in permitting the witnesses Hawley and Wiley to testify over the objection of the defendant is clear. In view of a probable retrial of the cause, there are one or two other errors alleged that may be properly considered.
2. Each of the two notes bore an endorsement of payment of $1.00 made on the day before they would have become barred under the statute of limitations. It appears from the evidence that these two payments were made under the following cir
Appellee further contends that other certain alleged insufficiencies in its evidence have been cured
The judgment is reversed and remanded.
Reversed and remanded.