Blood v. Fairbanks

By the Court : When this cause was here before we held that Hewitt was a necessary party to a bill for an accounting, and, when the cause was remitted to the District Court, he was accordingly made a party defendant by proper amendments. The objection to his competency as a witness should have been sustained by the court below. Section 1880 of the Code of Civil Procedure provides that “parties to an action or proceeding, or in whose behalf an action or proceeding is prosecuted, against an executor or administrator, upon a claim or demand against the estate of the deceased," cannot be witnesses. It is said that Hewitt is not a party against an executor, and that he has no claim against the estate. But the statute does not merely exclude parties who have or are supposed to have an interest adverse to the estate of the decedent, but, by its terms, renders all the nominal parties to the action incompetent. Judgment and order reversed, and cause remanded for a new trial.