Payne v. Long

131 Ala. 438 | Ala. | 1901

TYSON, J.

The statement of defendant as a witness that he never gave any other note with a condition in it to plaintiff's, testator or any one else involved no transaction with the deceased and is not within the exception to the competency of parties as witnesses under section 1794 of the Code. — Morrissett v. Wood, 123 Ala. 384; Gamble v. Whitehead, 94 Ala. 335; Wood v. Brewer, 73 Ala. 259.

The court, against the objection of plaintiff, permitted the defendant to state his version of a conversation and all else that occurred in the Florence Hotel between himself and the plaintiff’s testator for the purpose of impeaching the statements of Estes, who was present, heard and saw all that occurred between them and who had testified to what he saw and heard as a witness for plaintiff. Manifestly the direct office and purpose of this testimony was to. weaken the evidence given of a transaction with or statement by plaintiff’s testator with defendant which was declared in Miller v. Cannon, 84 Ala. 59, to be expressly within the reason and spirit of the prohibition of the statute. The ruling of the trial court on this point was doubtless influenced by a dictum in the case of Frank v. Thompson, 105 Ala. 211; and if the dictum in that case on fliis point be sound, the ruling was perhaps correct. But what was there said is in direct conflict with Miller v. Cannon, supra, and no ease is cited to support it. Doubtless the case of Miller v. Gannon was overlooked. However, after careful consideration, we are clearly of the opinion that Miller v. Cannon announces the correct rule, and that che dictum in Frank v. Thompson is wrong. We must, therefore, decline to follow it. With this evidence eliminated, the testimony shows, without dispute, a ratification by defendant of the alleged alteration of the note sued upon. — Payne v. Long, 121 Ala. 385, s. c. 25 So. Rep. 780.

It is unnecessary to consider any of the other assign-^ ments of error.

There is no merit in the objection found in brief of counsel for appellee that the bill of exceptions is no part of the record because of the want of authority in the judge to make the order extending the time for signing it. — Code, § 619.

Reversed and remanded.