| W. Va. | Jul 17, 1876
This is an action of assumpsit, brought in the circuit court of Marion county, by plaintiff, as administrator of Leonard Metz, deceased, against Ezekiel C. Snodgrass. The declaration contains the common counts in assump-sit, framed as usual in a case of a personal representative sueing for money due him in his fiduciary capacity. With the declaration, there is an account filed, which claims from the defendant $128.33, as being received Or collected from J. W. Clayton, in March, 1869, by defendant, belonging to the estate of the decedent. To the declaration, the defendant, plead lion assumpsit, etc., on which issue was joined, and filed specifications and notice of setsoff. The cause was tried by jury, and the jury found for the plaintiff, and assessed his damages at $120., of which the plaintiff released $1.75, and the court rendered judgment in favor of plaintiff, against defendant for $118.25, with interest thereon from the thirteenth day of December, 1871, till paid, and costs of suit.
After the verdict of the jury, and judgment thereon, but on the same day, the defendant moved the court to set aside the verdict ofithe jury, and the judgment rendered thereon, and grant him a new trial, but the court overruled the motion, and the defendant took and filed as part of the record, the several bills of exceptions to the opinions of the court.
By the first bill of exceptions, it appears the plaintiff, to maintain the issue on his part, gave in evidence to the jury, the transcript of a judgment rendered by John W. Clayton, late a justice of the township of Mannington, in Marion county¿ by which said transcript it appears that Leonard' Metz, deceased, use óf E.'C.' Snodgrass against Edmund Talkington, recovered a judgement against said
By the second bill of exceptions, it appears that, after the jury had considered the evidence set out in first bill of exceptions, the jury returned into court, and rendered a verdict against the defendant for the amount hereinbe-fore stated, and that the plaintiff released to the defendant $1.75 thereof; whereupon the defendant moved the court to set aside the verdict, as amended, on the grounds that the verdict is erroneous, and is contrary to the law and the evidence; but the court overruled the motion, and rendered judgment on the verdict, as amended, and for costs, &c.
The first question to be determined is, did the court below err in refusing to allow the defendant to testify as a witness in his own behalf, in respect to the transaction testified to by James Metz, a son and heir at law of the decedent, as having occurred between the decedent and the defendant? The evidence of the said James Metz, as to said transaction, clearly tends to fix a liability on the defendant, and there is no other evidence in the cause which tends to fix such liability. The witness, James Metz, being the heir at law of the decedent, is prima, facie interested in a recovery in the cause against the defendant. In fact, he may be entitled, for aught that appears in the cause, to the whole amount of the recovery. The plaintiff, who is the administrator of the decedent» having sought to fix a liability in the cause upon the evidence of the heir at law, who is, prima facie, inter
In rendering this opinion, as to the competency of the defendant -as a witness-■ to. testify -in his own behalf in respect to the said' -.transaction, testified by the said heir at law, T do not mean, or intend to express, any opinion as to the construction of said twenty-second and twenty-third sections of said chapter-of the Code of this State, beyond w'hat I have above stated. I am free to say, that the first and second clauses of said twenty-third section are difficult of interpretation, and especially the second clause, owing to the language employed. The section, with the exceptions mentioned in- the first and second clauses, is supposed to have been copied from the. laws of New York, but, on comparing the same-, it will-be seen.-there is a difference in important particulars. The- difference, I
Having determined that the circuit court erred,' as above stated, it is unnecessary and immaterial to inquire or determine further in the case at this time.
For the reasons above, stated, ■•■ the judgment of the circuit court, rendered in this cause, must be reversed and annulled, and the plaintiff in error recover against the defendant in error, his costs in this court, in this cause, expended — to bo levied upon the effects of said decedent, which came into the'hands of the defendant in error, to b.e administered ;. and this court proceeding to render such judgment, as the said circuit court should have rendered; it is considered that the verdict of the jury, rendered in the cause, be. set aside, and a new trial awarded therein, the costs, of the lormer. trial, to. abide the event of the suit, and this cause is remanded to the circuit court of the'county of Marion, for further proceedings to’be had therein', according to law.
> Judgment. Reversed, Verdict Set AsidEj and New Triad Awarded.