Abbott v. Clark

The opinion of the court was delivered by Kellogg, J. The relation in which Ruth M. Abbott stands to the plaintiff is such as to render her an incompetent witness, unless the plaintiff could legally have been admitted as a witness in the case. This is admitted in the argument, and we think very correctly;' for their interests are identical. The question, then, arises, is the plaintiff a competent witness? Formérly it was regarded as a well settled principle, that a party of record could never be admitted as a witness in the suit, except by consent of the opposite party. That rule, however, has been relaxed by the more recent decisions. The reason of the rule was, the sup [446] posed interest of every party upon the record; and we know of no other. If, then, a case should arise, in which a party of record was divested of all interest in the event of the suit, we see no reason why, upon proper application, he should not be admitted a witness. So are the recent decisions in the English courts and in the courts of some of the neighboring states. 20 E. C. L. 177. 11 Conn. 342. 12 Conn. 134. The same principle was fully recognized by this court in the case of Sargeant v. Sargeant ct at., IS Yt. 371. It may, then, be regarded as a settled principle, in this state, that a party of record may call the opposite party, with his consent, as a witness, he being divested of all interest in the suit. The question then arises, was the plaintiff divested of all interest in the suit? He is clearly liable, in the first instance, for the costs of the suit; for the statute expressly so provides. But it is said, that, by statute, he is authorized to charge the costs, so allowed against him, to the estate, and that therefore his interest is removed, in the case of a solvent estate. It must, however, be borne in mind, that the probate court may not allow these costs; for the law only contemplates this allowance, in the event that the suit has been prosecuted bona Jicle. If he should fail in the suit, may it not be questioned, whether it was prosecuted in good faith 1 And to avoid this risk, would he not have an interest to recover in the suit? We think he would. Consequently he was not free from interest, so as to render his wife a competent witness in the suit. But, suppose the plaintiff divested of all interest in the event of the suit, is it true, that he could claim the right to testify, without .the consent of the other party. And if he could not claim this for himself, neither could he claim it for his wife. Now we are not aware of any authorities to sustain such a claim. None such have been produced, nor do we believe any such are to be found. We believe the utmost extent, to which the authorities upon this subject have gone, is, to allow a party of record to call the opposing party, loith his consent, or a co-party, they being divested of all interest in the suit. The case at bar, then, is clearly distinguishable from the adjudged cases, which have been brought to our notice. The witness was properly excluded, and the judgment of the court below is affirmed.