| Mo. | Sep 15, 1841
Opinion of the Court by
The appellee, Gross, sued Matthias and Francis Steigers, by petition in debt, on a note for eight hundred dollars. Gross obtained a judgment for the full amount, but remitted two hundred and twenty-four dollars and fifty-nine cents. From the bill of exceptions it appears that the defendant offered to prove by Francis Steigers, upon whom there had been no service, and whom the defendant had duly released, that two other notes, then in court, had been executed and subsequently paid to the plaintiff by the defendant in part payment of said note sued on. The court excluded the testimony on the ground of incompetency, to which opinion of the court exceptions were saved.
A person named in the writ as defendant, but upon whom ... . 1 the wnt is not served, is no party to the action, and his liability to the plaintiff on the contract is not affected by the result of that action. He is therefore a competent witness for the defendant unless he is liable for contribution. A release from that liability renders him competent. Ames Whittington, 3 New Hamp. R. 115; 16 Mass. 118" court="Mass." date_filed="1819-09-15" href="https://app.midpage.ai/document/fox-v-whitney-6404855?utm_source=webapp" opinion_id="6404855">16 Mass. Rep. 118; 2 Starkie Ev. 130; Chitty on Bills, 413; Gibbs v. Bryant, 1 Pick. R. 118.
If from the record in this case it could be seen that the amount remitted by the plaintiff corresponded with the ill amount winch the excluded testimony of F. Steigers would have established to have been paid, it would be apparent that the defendant had sustained no injury by the action the cu cutt court m rejecting his witness. As the record nowhere shows how this was, and the remittitur may