13 Kan. 164 | Kan. | 1874
The opinion of the court was delivered by
This was an action on an account. It
was commenced in a justice’s court, appealed to the district court, and then brought on petition in error to this court. It is uncertain what questions are really presented to us for our consideration. No case was made for the supreme court, as might have been done under the statutes enacted for that purpose; (Gen. Stat., 737; Laws of 1870, p. 169; Laws of 1871, p. 274;) and hence it would seem that the whole record should have been brought to this court. But the pleadings however are not brought to this court; the record does not purport to contain all the evidence; and while a motion was made to set aside the findings of the court below, and for a new trial, yet the record brought to this court does not show upon what ground such motion was founded, or upon what ground the new trial was asked. The trial in the court below was before the court without a jury. The court made a general finding for the plaintiff below, defendant in erroi’, and made no special findings; nor was the court asked to make special findings. The judgment was rendered in accordance with said
“Sec. 322. No party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person, when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person, where they have acquired title to the cause of action immediately from such deceased person; nor shall the assignor of a thing in action be allowed to testify in behalf of such party concerning any transaction or communication had personally by such assignor with a deceased person in any such case; nor shall such party or assignor be competent to testify to any transaction had personally by such party or assignor with a deceased partner or joint contractor in the absence of his surviving partner or joint contractor, when such surviving partner or joint contractor is an adverse party.” * * *
. The construction given to said section by the court below certainly comes within the spirit of said section, and we are inclined to think that it also comes within the letter of the section. Of course, a different construction might be given to said section, for it is manifestly ambiguous in two or three respects, but the true construction is, we think, the one given it by the court below.
The third point made in the brief of counsel for plaintiffs in error is not presented by the record brought to this court. The remarks we made at the beginning of this opinion will apply to that point and will be a sufficient discussion thereof. Judgment affirmed.