Yarborough v. Hood

13 Ala. 176 | Ala. | 1848

DARGAN, J.

The evidence of the contract for the rent of the land, if that was the foundation of the account, is set out in the bill of exceptions, in such a confused manner, and it being difficult to ascertain what influence the charge had upon the case, we shall confine ourselves to the questions arising on the rejection, and the admissions of the testimony, to which objections were made. The first objection was to the rejection of the answer of the witness (examined on interrogatories) to the last interrogatory.

The last interrogatory was, state all you know that will benefit the plaintiff, as particularly as if you were thereunto specially interrogated.

This is the usual concluding interrogatory, and the witness may respond to this, any circumstance pertinent to the controversy, and which the preceding interrogatories had not elicited — and if a witness, in reply to this interrogatory, discloses material matter, bearing on the question, touching which he is examined, it cannot be rejected, on the ground that such answers are not called for by the interrogatory. But the answer of the witness to the interrogatory, in this case, seems to be unimportant, and if it had been permitted to go to the jury, we do not see what influence it could have had, or ought to have had — we should not therefore reverse the cause for the suppression of the answer to this interrogatory; for this court will not reverse a judgment for the rejection of the the answers witnesses to interrogatories, unless those answers contain something within themselves, that would be considered evidence, tending to prove or disprove the issue, or to prove or disprove some fact or circumstance, that is material in the consideration of the issue.

2. The second assignment of error is, that the court should have permitted the plaintiff to state, when examined as a witness, all the circumstances attending each item in the account ; and should also have permitted the plaintiff to examine the defendant, touching the particular circumstances of each item. The court would not allow any other question to be put to the plaintiff, or the defendant, than the single one whether the account, and the.items thereof, were just. In this the court erred. In 3 Ala. Rep. 442, the statute of 1839, which allows the plaintiff to prove his account, when it does not exceed $100, was construed, and it was held, that the object of the statute was to make the plaintiff a witness, and as such he could be examined on interrogatories, or by deposition, under the same circumstances that would authorize the examination of any other witness. If the plaintiff is to be treated as a witness, he ought to be permitted to speak of each item of the account, and to prove all the circumstances that gave rise to it. The defendant, however, has the right under the statute, to deny all the facts stated by the plaintiff on his examination, and this denial will destroy entirely the evidence of the plaintiff, and take from it all force as evidence. See 6 Ala. 783.

But the defendant does not become a witness, nor is the plaintiff entitled to examine him as to the justice of the account, nor can he give evidence to show that it is unjust, but he has the simple right to deny on oath, all, or any portion of the facts stated by the plaintiff, and this denial destroys the statement, so far as it is denied, made by the plaintiff, as evidence. The county court therefore erred in permitting the question to be put to the defendant, tending to show whether the account was just ox unjust. The defendant should have been confined to a denial of the facts deposed to by plaintiff.

The court also erred in permitting parol proof to be given of the entry of a part of the land by Hefflin. The best evidence of this was the certificate, or patent, if one had issued; and parol proof of the entry should not have been permitted without showing a proper reason for admitting this secondary evidence.

These errors are sufficient to reverse the judgment; and if there is error in any other portion of the record, it is difficult, from the manner in which it is presented by the record, to determine whether such error ought to have any influence in reversing the judgment; they are therefore not noticed.

Let the judgment be reversed, and the cause remanded.