McKean v. Massey

9 Kan. 600 | Kan. | 1872

The opinion of the court was delivered by

Kingman, C. J.:

The exceptions in this case raise but one question, and that is,- Can a defendant be a witness in his own behalf, in an action brought by an administratrix for indebtedness due the deceased in his lifetime ? This question is presented very broadly by the record. It is not Avhether such a person may testify as to a particular class of facts, but Avhether lie may in such a case be a Avitness at all in his own behalf. The fact of a person being a party interested does not prevent him from being a Avitness in his OAvn behalf. But § 322 of the code provides in Avhat causes a party shall not testify in his OAvn behalf, and among other causes rendering-his testimony incompetent is this, that he shall not be alloAved to testify in his OAvn behalf in respect to any transaction or communication had personally by such party with a deceased person. Subject to this restriction a party in such a case as this is alloAved to testify in his OAvn behalf. If the case presents any issues on which the party offered may testify, without necessarily testifying in respect to any transaction or communication had personally with the deceased, then the court erred in refusing to permit him to testify. The issues present many points upon Avhich the party might have testified without any violation of the restrictions of § 322, of which may be mentioned, according to the pleadings, the indebtedness for which the action tvas instituted, which was created between August 2d, 1857, and July 20th, 1859. To avoid, the effect of the statute of limitations the petition avers that the defendants had all the time, from the accruing of the-indebtedness to the commencement of the action, been out of the state. This statement is controverted by the general denial in the first clause of the answer. ' The party offered as a witness might have testified to essential facts on this issue, without touching upon any communication or transaction with the dgeeased. Again, he jnight have testified as to any transaction between defendants and an agent of the-deceased. The law has not restricted the party from testifying as to communications or transactions between the parties-except where such communications or transactions were personal. In New York, under a similar provision of the code,, so far as the point we are discussing is concerned, it has been held that a party may, as a witness, testify as.to a conversation heard by the witness between the deceased and a third person: Simmons, Adm’r, v. Sisson, 26 N. Y., 264, 267. All that is neeessaiy to decide in this case is, that, under the-issues formed, there were points upon which the party defendant who was offered as a witness was competent to testify. In refusing to permit him to testify at all, the court committed an error,* for which the judgment must be reversed, and a new trial ordered.

All the Justices concurring.