95 Mo. 68 | Mo. | 1888
This was a suit by Harriet b’ Bryan and her present husband to have dower assigned in two hundred acres of land. The claim is, that Henry Bell made an oral gift of the land to his son, Noah D. Bell, the former husband of the |)laintiff, Harriet. The three children of Noah D. Bell and the said Harriet are made defendants, but they do not make answer. The other defendants are the other heirs of Henry Bell, he being also dead when this suit was commenced. The court made a decree divesting the defendants, other than the three children of Noah D. Bed, of all title, and invested the same in these three children, and then caused .dower to be assigned.
1. So far as the decree invests the title in these three children if is erroneous. They ask and claim no such relief. Indeed, the evidence offered, but excluded, shows that they are entitled to no such relief. This
2. The objection made by the defendants, that the plaintiff, Mrs. O’Bryan, was incompetent to testify in her own behalf, was properly overruled. She was not one of the original parties to the contract or cause of action on trial. The original parties to that contract were Henry Bell and his son Noah D. Bell, both of whom are dead. Though she is a married woman and her husband is a party to this suit, still she is the real party in interest, and may testify. Owen v. Brockschmidt, 54 Mo. 288. It is not claimed that she can testify as to conversations of her former husband, made to herself or third parties. Such conversations and admissions are to be excluded, if offered.
3. Objection was also made, by the defendants who filed answer, to the evidence of Henry M. Thompson, one of the defendants, when called as á witness by the plaintiffs, on the ground that he was the husband of his co-defendant Clara. Mrs. Clara Thompson is a daughter of Noah D. Bell; and if this property belonged to her father, she inherited one-third, and if not, then she inherited one-ninth interest in this and other property from her grandfather ; so that in any event she has an undivided interest in the land. If her husband has a substantial interest in the contest, then, he, too, is a competent witness. He has no interest in her real estate which he can convey by his individual deed ; but he has the right to possess and enjoy the property, and this marital rihgt will be defeated to the extent that the land is set off to the plaintiff for her life. We think he is, therefore, not merely a nominal, but a substantial,
4. At the request of counsel for some of the defendants, and before any evidence was heard, the witnesses then present were sworn, and were by the court directed to withdraw from the courtroom and not return until called. Mr. Stephens, one of the witnesses thus sworn for defendants, when' called to the stand, stated that he had been in the courtroom, off and on, fifteen minutes, and that he had not understood the rule excluding witnesses from the room. The court refused to hear his evidence and defendants excepted. Other witnesses, not present when the rule was made and not sworn until called, were also excluded, one because he had been in the room less than five minutes, and another, though he heard none of the evidence, and no witness was on the stand whilst he was present. •> <
The judge may, according to the weight of authority, in his discretion, order an examination of the witnesses out of the hearing of each other ; and some of the authorities hold that it is discretionary with him, whether a witness shall be examined at all who has disobeyed the order; but it is believed that, to refuse to hear the evidence of a witness, who had disobeyed the order without fault on the part of the party calling him, would be reversible error, an unsound exercise of that discretion. The following extracts from the text-books will show the current of modem rulings : “A witness’ testimony, it is true, will not be necessarily ruled out because he remains in court, even wilfully, after being ordered to withdraw ; but he exposes himself, by his disobedience, to an attachment for contempt. But where the party calling the witness is to blame for the disobedience, then the witness may be excluded.” 1 Whart. on Evid., sec. 491. “If a witness, who has
Any other rule would put it in the power of a hostile witness to deprive a party of his evidence, and we conclude that the better rule is, that it is reversible error to exclude a witness who has disobeyed the order, unless-the party or his attorney, calling the witness, has been-party or privy to the violation of the order, and this conclusion we believe has the support of the following authorities : Keith v. Wilson, 6 Mo. 435; Hubbard v. Hubbard, 7 Ore. 42 Hey v. Commonwealth, 32 Gratt. 946; Davenport v. Ogg, 15 Kan. 363; Bell v. State, 44 Ala. 393. It is clearly shown that these witnesses were not in the courtroom by the connivance, knowledge, or consent of the defendants- or their attorneys, and it was error to exclude the witness Stephens. The tw.o-other witnesses had no notice of the rule, and cannot be said to have disobeyed it; still it was error to- exclude them, for it was stated and understood, when, the rule was made, that there were other witnesses- for the defence, not then present,, who would be, called. Other witnesses were also excluded, but we need not notice the rulings in respect of them.
. The real merits of this case cannot be considered until all the evidence is in the record. The judgment is reversed and the cause remanded for trial anew.