Indiana Central Railway Co. v. Gulick

19 Ind. 83 | Ind. | 1862

Perkins, J.

Suit by Gulick against tbe Indiana Central Railway Company, to recover the value of a trunk and contents, alleged to have been lost by. the company. On the trial, the plaintiff was allowed to give in evidence his ex parte affidavit as to the contents of the trunk, etc. The defendant objected and excepted to that item of evidence. The Court erred in admitting the affidavit as evidence. Eedfield on Eailways, 1st ed., p. 310. The Circuit Court was misled, and somewhat excusably so, by the ease of Doyle v. Kiser, 6 Ind. 242.

Neweombe and Tarkington, for the appellant. M. Igoe, for the appellee.

In that case, the affidavit of the plaintiff was admitted in evidence, but the facts, which do not appear in the report, are, that the affidavit was admitted by consent, after the Court had determined that the plaintiff was a competent witness. The point in the case, and the one decided, was, that the plaintiff was a competent witness. This is very manifest, from the cases upon the authority of which the ■ruling in Doyle v. Kiser was made. They were cases where the plaintiff was a witness. See the note to The Great Northern, etc. v. Shephard, 9 L. and Eq. Rep. 477, and The Mad River, etc. v. Fulton, 20 Ohio, 318.

Per Curiam.

The judgment is reversed, with costs. Cause remanded for a new trial.