41 Wis. 624 | Wis. | 1877
I. On the trial, the wife of each defendant was offered as a witness generally in behalf of the other defendant, and questions were put to each which were pertinent to the issue. The court sustained an objection to the competency of the wife of one defendant to testify as a witness for the other. This ruling is assigned as error.
The defense of both defendants is one and indivisible. It was impossible for the wife of one of them to give testimony in favor of the other which would not enure equally to the benefit of her husband. Had the testimony beon received and had it tended to show a delivery of the deed, it would necessarily have tended to shoy such delivery to the husband of the witness as well as to the other defendant. We think that in such a case the wife of a defendant is not a competent witness for the other defendant, unless there are special circumstances which would render her a competent witness for her hu'sband also — as for example, where she is called to testify to trans
If the deed was delivered to the defendants so as to vest in them the title to the land in controversy, their wives have inchoate dower rights in such land, and although they are not, perhaps, necessary parties to this action, still they would he proper parties thereto. Foster v. Hickox, 38 Wis., 408. Had they been made parties, a different rule in respect to their competency as witnesses would prevail.
We must not be understood as holding that the wife of a defendant may not be competent to testify for another defendant in respect to some matter which cannot affect her husband. Take, for example, an action against two makers of a promissory note given for the debt of one of them, the other being a mere surety; the latter may interpose the defense that the holder of the note has extended the time of payment thereof without his consent, by a valid agreement to that effect with the other maker. How it maybe that the wife of the defendant for whose debt the note was given, is a competent witness for the surety to prove such defense, because, if the defense is maintained, it does not affect the liability of the husband to pay the note. The same point was argued in Heath v. Keyes, 35 Wis., 668, but was left undetermined. We intimate no opinion here as to the competency of the wife of a codefendant as a witness in such cases, but leave the question to be disposed of when a case arises which presents it for adjudication.
II. Both defendants were called and sworn as witnesses in their own behalf, and (among others) the following questions were put to each of them concerning the instrument-or deed in controversy: “Did you ever see this deed before to-day? If so, state when and where for the first time. Was it ever in
The defendants were not competent witnesses to prove any personal transaction or communication had between them and the deceased grantor by whom the deed was executed. Laws of 1868, ch. 176, sec. 1 (Tay. Stats., 1600, § 174). Hence, tliey could not be permitted to tjestify that the deceased delivered the deed to them, or to state any conversations with him1 in relation to the deed, or concerning any matter affecting the issue. But with that restriction it seems to us that the defendants should have been allowed to answer the above questions. It may be that in answer thereto they could have stated facts important to them in the case, without violating the statutory rule above stated. Suppose, for example, they had testified that the deed was continually in their possession or under their control from the day of its date until they placed it on record.. That would not be testimony of any transaction between them and the deceased personally, nor of any communication had with him. Why, then, was it not testimony the defendants were competent to give? We think that they were competent to give it.
Such testimony would not of itself prove the delivery of the deed, but the facts testified to might have an important influence (if the court believed the testimony) in determining the question of delivery. It wpuld have been 'the better practice for the court to have received the testimony, and, if any of it was incompetent, to have rejected that portion of it. Of course we cannot know what the testimony would have been, had it been received; but because some, at least, of the qiies-tions were unobjectionable, and because the answers thereto might, without a violation of the statutory rule, have been im
III. After the cause was submitted to the court, and before it was decided, the defendants filed certain affidavits, to the effect that after the proofs were closed they discovered testimony of which they were before ignorant, and moved the court to open the case and allow them to put in such testimony. They also attempted to show due diligence in looking up witnesses before the trial. The court denied the motion.
'Without enlarging on the subject, we are inclined to think that the motion should have been granted on proper terms. The newly discovered evidence is stated in the affidavits, and it is pertinent to the issue, and may have been important. At that stage in the progress of the cause, a court of equity should exercise its discretion liberally to enable the parties to place before it all the evidence within their reach material to the issue. Especially should the court do so where, as in this case, the evidence is conflicting and mostly circumstantial.
But inasmuch as there must be a new trial on another ground, the defendants will have an opportunity to introduce such testimony, and the ruling of the court on the motion to open the cause and let in the testimony ceases to be of any importance in the case.
By the Oov/rt. — The judgment is reversed, and the cause remanded for a new trial.