42 F. 488 | E.D. Mo. | 1890
The testimony of C. C. Crecilius, taken in connection vfith other testimony offered by the plaintiff, clearly shows that the deceased assigned his stock in the insolvent bank to Crecilius, the cashier, with intent to evade his liability as a shareholder. According to the testimony of Crecilius, the deceased had not only been advised before the
A question arises, however, and was reserved at the trial, touching the competency of Crecilius to testily against the executrix concerning transactions between himself and the testator. The federal statutes provide (section 858) that—
‘“3io witness shall be excluded * * * in any civil action because he is a party to or interested in the issue tried: provided, that in actions by or against executors, * * * in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, * * * unless called to testify thereto by the opposite party. * * * In ail other respects the laws of the state in which the court is held shall be the rules of decision as to the competency of witnesses in courts of the United States,” etc.
The state law on the subject (section 8918, Rev. St. Mo. 1889) provides that—
“ \'-o person shall be disqualified as a witness in any civil suit * * * by reason of his interest in the event of the same, as a party or otherwise: * * * provided that, in actions where one of the original parties to the contract or cause of action in issue and on trial is dead or * * * insane, the other party to such contract or cause of action shall not be admitted to testify * * in his own favor; * * * and, where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless the .contract in issue was originally made with a person who is living and competent to testify,” etc.
The first clause oí the proviso of section 8918, supra, as heretofore construed by the state courts, has much greater scope than the federal statute above referred to. Thus, in Meier v. Thieman, 90 Mo. 434, 2 S. W. Rep. 435, it was held that by the proviso in question a person was rendered incompetent to testify as to transactions with a decedent in a suit brought by his heirs, although the person tendered as a witness was not a party to the’suit. 'The decision appears to be based on the ground that a witness, to be excluded by the state law, need not be a party to the record, but will be excluded as a witness as to all contracts or trans
The case at bar is clearly within the terms of section 858. The effort is to exclude Crecilius as a witness on- the ground of interest; but the first clause of the section declares that interest shall he no disqualification “in any civil action,” and the only exception to that rule is that mentioned in the proviso, — that a person called as witness shall not be allowed to testify as to any transactions with or statement by a decedent, if the suit is against his executor or administrator, and the witness is himself an opposing party to the suit, unless the witness is called upon to testify by the executor or administrator. The case at bar seems to be strictly like the case of Potter v. Bank, supra, in which a person situated as Cre-cilius is, with respect to the litigation, was held tobe a competent witness. Whatever view, therefore, the court might entertain as to the competency of the -witness under the state law, it is compelled to hold that he is made a competent witness by the federal statutes. Judgment will accordingly go against the executrix for the amount of the comptroller’s assessment; that is, for $3,500, with interest at 6 per cent, per annum, to be computed from September 24, 1889, to this date.