44 Neb. 143 | Neb. | 1895
. This was a suit by Christian Lihs against August Lihs and Ernestine Lihs to procure the rescission of a conveyance of one hundred and sixty acres of land in Cedar county, theretofore alleged to have been executed by the the plaintiff to August Lihs upon a condition subsequent. The amended petition alleges, in substance, that on the 19th day of December, 1882, plaintiff was the owner in fee of the land in dispute, and occupied the same, together with his wife, the said Ernestine, his son, the said August, and an unmarried daughter, as a homestead; that on said date the plaintiff and his said wife conveyed to the defendant,
After the plaintiff had introduced his proof the defendant called Ernestine Lihs, the wife of the plaintiff, as a witness in his behalf, and she was sworn, and testified in effect that at and prior to the time the deed was executed by herself and husband, there was no agreement or contract entered into whereby August covenanted to support and maintain the plaintiff and his wife so long as they should live, or that they were to remain upon the farm; that the plaintiff had shot and injured Mr. Lentz’ boy; that a suit for damages against the plaintiff was, by reason thereof, anticipated, and that was the inducement for making the deed. Counsel for the plaintiff objected at the time to Mrs. Lihs testifying, on the ground that she is incompetent to testify against her husband, which objection was overruled by the court, and an exception was taken to the decision. This is the sole error relied upon for reversal of the judgment.
Section 331 of the Code of Civil Procedure declares: X( The husband can in no case be a witness against the wife, nor the wife against the husband, except in a criminal proceeding for a crime committed by one against the other, but they may in all criminal prosecutions be witnesses for each other.”
The foregoing provision was under consideration in Niland v. Kalish, 37 Neb., 47, and Greene v. Greene, 42 Neb., 634. The first case was an action by the creditors of Solo-man ICalish to set aside conveyances claimed to have been fraudulently made by him to his wife. It was held that it was incompetent for Mrs.Nalish to testify against her husband, without his consent, as to facts- tending to show the transfer was voluntary and fraudulent as to the creditors of
It only remains to be determined whether the judgment, should be reversed for the error committed by the district court in permitting Mrs. Lihs to testify in the case. This court has repeatedly said that a cause tried to the court without the intervention of a jury will not 1 e reversed for the admission of incompetent or irrelevant testimony alone.
Affirmed.