McBrien & Holly v. Martin

87 Tenn. 13 | Tenn. | 1888

Caldwell, J.

Martin sold a horse to Ramsey for $100, and took his note for the purchase money.

The note was placed in the hands of Simpson for collection.

Simpson afterward died testate, and McBrien & Holly were qualified as Lis executors.

Martin, claiming that Simpson had collected, the note and failed to' pay the money over, brought this suit against the executors, before a Justice of the Peace, to recover the amount so claimed to have been collected and converted by Simpson.

The case was taken into the Circuit Court at Chattanooga by appeal, and there tried by the presiding Judge without the intervention of a jury, and judgment rendered for the plaintiff below for $112 and costs. ,

A new trial being refused, the executors appealed in error to this Court.

The only direct proof of payment to Simpson was made by Bamsey, the debtor. He testified positively that he paid the note to Simpson.

To this testimony the executors excepted on the trial below, and upon the action of the Court in admitting it they here assign error.

The contention is that the evidence was incompetent, and should have been rejected because Bamsey, the witness, was directly interested in the result of the suit, and because he was testifying as to a transaction between himself and a deceased person, against whose estate his testimony operated to fix a liability.

The interest of the yfitness, and the nature and effect of his testimony, are as thus contended for, but it does not follow that the testimony is not competent.

Disqualification on account of interest in the litigation was removed, by § 4568 of the Code (M. & V.). The case before us is not embraced in the exception made by § 4565 of the Code, which is in these words:

“In actions or proceedings by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by -the testator, intestate, or ward, unless called to testify thereto by the opposite party.”

Clearly this exception is made with respect to parties only, and does not include interested persons who are not parties. ■

Fuqua v. Dinwiddie, 6 Lea, 646; Hudgins v. Fanning, 4 Bax., 578.

In the case of Godfrey v. Templeton, 2 Pickle, 161, referred to by learned counsel for appellants, the excluded witnesses were not only interested, in the result of the litigation, but they were also parties, seeking recoveries against the administrator of a deceased partner.

The testimony of Ramsey was competent, and the assignment of error upon its admission is not well taken.

The other assignments of error, which need not be stated, are likewise not well taken.

Let the judgment be af&rmed, with costs.

PARTIES AS WITNESSES.

Decisions not embraced in note to Godfrey v. Templeton, 86 Tenn., 168-171:

1. Parties are not entitled to fees for attendance as witnesses. 6 Heis., 92.

2. Parties to a suit on a proven account from another county are competent. 8 Bax., 396, overruling 6 Heis., 329.

3. Stockholder competent to prove transactions had with deceased in suit between the administrator and the corporation. 86 Tenn., 355.