Hill v. Truby

[324] HILL V. TRULY. Opinion, Mr. Justice Green: We think it was error to reject the offer to prove by Hill what occurred between Mm and the tax collector, on the ground of incompetency of the witness. We held in Ash v. Guie, 97 Pa. 493, that the spirit of the act of 1878 embraced the survivor of two or more who jointly contracted, and therefore the plaintiff could testify as to matters occurring between Mmself and the survivmg defendants. But we did not mean to decide that he could not testify as to relevant matters wMch occurred between Mmself and strangers. There would be no propriety •■and no necessity for such a decision. Such matters were not •excluded by any interpretation of the act of 1869, except that which declared the general incompetency of the witness. 'That incompetency was removed by the act of 1878 in the ease of the survivor of joint obligors. It is true the act in terms qualified the witness to testify to matters having occurred between the surviving party and the adverse party on the record, but that was because it was that class of matters which were specially excluded by the construction wMch had been .-.given to the act of 1869, and that was the evil intended to be more particularly remedied by the act of 1878. But there ■could be no good reason for excluding other matters occurring between the witness and other persons who were not parties. Such exclusion had been, previously to the act of 1878, merely the result of a personal incompetency to testify at all; but when that general incompetency was removed, matters which were otherwise unobjectionable could not be excluded on that account. We are clearly of opinion, therefore, that other and Mdifferent matters between the witness and a stranger, might be proved as well by a surviving obligor or his adversary, providing only that they were relevant to the issue trying. But wMle it was -error to reject the proffered testimony on the ground of the incompetency of the witness, we are of opinion that it should have been rejected on the ground of irrelevancy. The offer does not disclose facts enough to make the testimony admissible. Hill was the owner of the farm up to the time of the sheriff’s sale which was June 2, 1883. He remained on the farm by agreement with Truby made on August 11,1883. The offer was to prove payment [325] of taxes assessed upon the farm, upon the theory that they were taxes which Truby was legally bound to pay. But that very essential fact does not appear in the offer and we cannot infer it. It is not possible to infer that taxes had been assessed against the farm as Truby’s property after June and before August, 1883. Naturally, if the question must be determined by inference we would be obliged to infer that the taxes had been assessed against Hill as owner, and therefore that he and not Truby was legally liable for their payment. But it is not necessary to put the matter upon that ground. The offer must itself disclose all the facts which are necessary to establish its admissibility and this is not done by the offer in question. There was therefore no error in excluding the testimony and hence there is nothing to reverse. Judgment affirmed. TOWNSEND’S APPEAL. Opinion, Mr. Justice Gbeen : The record shows a substitution of administrators, but it. does not show that it was done at their instance or by their authority, or by any one acting for them. They claim that it was done without their knowledge or consent and without any notice to them, and that in consequence thereof they were ignorant of the trial and the cause was tried and verdict rendered against them in their absence. Of course this is contrary to the plainest legal principles and the error must-be corrected. When the record does not show that the substitution was done at the instance of the administrators or their counsel, it should show that they were brought on the record by some sort of notice or process. A scire facias or a rule to show cause with proper proof of service would be suitable and are the usual methods employed. In the present case the record does not inform us how the representatives of the deceased party were brought in, nor that they were brought in at all, and in that respect it is fatally defective and cannot sustain the verdict and judgment. Judgment reversed as to Townsend’s administrators and order of substitution stricken off.