Hiscox v. Hendree

27 Ala. 216 | Ala. | 1855

CHILTON, C. J.

1. If the rules prescribed by the Code, as affecting the testimony in causes, are to be applied to cases which were pending before the 17th January, 1853, when the Code went into operation, then it is clear, that by section 2290, G-. D. Hiscox, the transferror of the note sued on, is not a competent witness for the transferree, to sustain the cause of action ; the matter in controversy exceeding three hundred dollars. — See section 2313.

But section 12 expressly declares, that “ No action, or proceeding, commenced before the adoption of this Code, is affected by its provisions.” When the action was brought, Gr. D. Hiscox, upon being released by the plaintiff, the trans-ferree of the demand sued for, was a competent witness; and, to allow the provisions of the Code to disqualify him, might very seriously affect the plaintiff’s right of recovery, nay, prevent his recovery. We think, the only safe rule by which to be governed, is, to make the exception contained in the 12th section of the Code general, and to hold that actions commenced before the adoption of the Code are to be governed by the old law, and those commenced since by the law as prescribed by the Code. Of course, this is confined to proceedings had in the court in reference to particular causes, and not to such as relate to the organization of the court for the trial of causes indiscriminately. This was the evident meaning of the legislature, and furnishes a plain and simple rule, easy of application, and one which cannot be well mistaken ; whereas, to depart from it, and make portions of the Code apply to such proceedings, and exempt other portions, would lead to great confusion and embarrassment, as well as give rise to much litigation consequent upon the uncertainty which would be introduced.

2. It appears upon the face of the papers sued on, that G-. D. Hiscox is the endorser, through whom the plaintiff derives his title, and he is prima fade an interested witness, When interrogatories were filed by the plaintiff to take his deposition, the defendant’s counsel promptly objected to his examination, on the ground of his interest, and examined him on cross-interrogatories, subject to that objection ; and a notice was then filed that he should move to suppress the deposition, for that reason, on the hearing of the cause. The plaintiff then proceeded to propound a question to him, to prove his interest, and that he was released. The witness testified to his interest formerly; but stated that the plaintiff had released him, and that he then had no interest. He produced what he called the release, which exempts him from all liability on two notes of three hundred and twenty-five dollars each, payable by J. Hendree, Selma, Ala., six and twelve months after date. The interest of the witness appearing, and being duly presented by the objection on the part of the counsel for the defendant, the witness was no more competent to disprove his interest, or to prove his release, than any other fact in the case. The case of Dent v. Portwood, 17 Ala. 242, shows very clearly that the court properly excluded the testimony.

3. As respects the testimony of James K,. Chilton : It was taken by deposition, and the bill of exceptions says the plaintiff offered to read it to the jury. The defendant objected to the answer to the third interrogatory, a part of which is legal and a part illegal; “ thereupon the court excluded all and every part of said testimony from the jury.” Hy brethren are of opinion, that the plaintiff must be regarded as offering the whole of Chilton’s deposition, and a portion of it being illegal, the court might properly have rejected it as a whole, and thus have cast on the plaintiff the duty of sifting the proof, and separating the legal portions from the- illegal; and so they hold, that whether the exclusion of the court, as stated in the bill of exceptions, extended to the whole deposition, or only to the answer of the witness to the third interrogatory, which also included some illegal testimony, it was proper, since the court, being justified in excluding the whole, cannot be put in error by the exclusion of a part. For my own part, I think the record shows that the court acted upon the motion of the defendant, which went to the answer to the third interrogatory, which motion raised no objection to other portions of the testimony ; and as the deposition consisted of several distinct portions, I do not think it the correct practice for the court, upon an objection to an isolated portion, to group the whole and exclude the whole. As, however, this involves a mere matter of practice, I yield to the opinion of the majority.

Judgment affirmed.