McGehee v. Hansell

DARGAN, J. It appears that at the March term, 1846, a trial was had in this cause, between the plaintiff, and Galloway, as the administrator of Denton H. Yaliant, and a verdict and judgment rendered for the defendant. The next step appears to be a suggestion, that Galloway’s term of office as sheriff had expired, and a motion was made for a sci. fa. against the representatives of the decedent when known. A scire facias issued, and was executed on the plaintiff in error, and the parties appeared by attorney, and went into trial, the result of which was a verdict, and judgment in favor of the plaintiff below. It is to be presumed that a new trial was granted by the court below. The defendant, MeGehee, appeared by attorney, and went to trial. We are to presume from this, that he was the administrator de bonis non of the deceased, and that he was regularly made a party to the suit, as he made no objection. 3 Ala. R. 581. There was no plea of a former trial filed by him, no objection made that he was improperly brought into court; but there is on file a declaration, and plea, and the parties go to trial without objection. Under such circumstances, this court must presume, that the order for a new trial was omitted to be entered by mistake, or that the parties consented to set aside the verdict on the former trial, and neglected to have it entered on the record. At all events, as there was no plea filed of a former trial, nor objection made in the court below, [21] that this cause had been previously tried, we cannot reverse the judgment rendered in favor of the plaintiff. The second assignment of error is also untenable. It is the daily practice to permit attorneys to give evidence, which is usually of some matter arising in the progress of the suit: and the rule is well established, that agents, or attorneys in fact, may be examined on the part of their employers, unless their interest in the suit is made to appear; but that a witness is the agent, or attorney in law, or in fact, of one of the parties, does not disqualify him on the ground of interest. The judgment is therefore affirmed.