McBride v. Cicotte

By the Court; Johnson, J. The first question in this casé is, whether the Court erred in admitting John I. Cicotte to testify under the affidavit of the defendant in error. This wás an affidavit filed in pursuance of Section 100, in Chapter 102, of the Revised Statutes, which provides that, “ whenever any action, suit, or procéeding, shall be pending' in any Court of law, and either party shall make and file with the Clerk of such Court, or with the Clerk of the Court in which any issue joined therein shall be triable, an affidavit, setting forth that any facts material to the issue or question to be tried are within the knowledge of any other party tó such suit ór proceeding, ánd that there is no competent witness whose testimony he can procure by whom such tacts can be proved, the parties to such suit or próéeeding, and any other persons interested in the event thereof may be examined on oath in relation to such facts.” This affidavit in form was in strict compliance with the foregoing provision, and it — 485 — stated, among other things, “that certain facts material to the issue and question to be tried in said suit, were within the knowledge of John I. Cicotte, son' and heir-at-law of John B. Cicotte, deceased ; and that there was ho competent witness whose testimony he Could procuré* by whom he could prove such facts'. That such facts wCre substantially as foíiows :■ That said will Of said deceased ^fas Sighed by said testator, and subscribed by the Witnesses, Alfred G-. Bates and Franklin Johnson, in the presence of each other and of Said testator, in the bedroom where said testator was at the time sick, and all done at the same time, and that after the will was signed by testator and witnesses, it whs, by direction of testator, handed to Mary Cicotte, a daughter, etc.;” adding other matters which are not material in the consideration of the case. It was objected, that the said defendant in error was not entitled to the testimony of the witness Cicotte under this affidavit, because it hppeax-ed from such affidavit and from the former proceedings on said trial, that said matters wex'e within the kixowledge of other persons than the said witness Cicotte, viz.: Alfred G-. Bates and Franklin Johnson, and becaxxse the same was of xnatters, concerning which, the subscribing witnesses afox’esaid had testified; but the Court overruled said objection, and decided that the said witness Cicotte should be permitted to testify to the matters set forth in said affidavit. Upon this decision, error is assigned, and it presents the fix’st question for our consideration. Bates and Johnson, the subscribing witnesses to the will, had then already given in their evidence, they had been called by the defeixdánt in érx*or ; they eaoh had testified to all the facts and circumstances connected with the execution of the will, and the only difference in their testimony was as to the fiaos where they subscribed the will as witnesses. Bates was of the .opinion that it was in the room with, and in the presence of the testator; Johnson was of the opinion — 486 — that it was in an adjoining room. In all other respects their testimony substantially agreed. Is this, then, such a case as was intended to be provided for by the foregoing statute ? The object of that statute was to remove certain common law disabilities. It enables a party to a suit to call his adversary, in certain specified cases, not as a witness genererally, but to testify to certain facts within the knowledge of such adversary, and which cannot be proved by any • competent witnesses. This right, thus acquired under the statute, upon filing such an affidavit, is not founded upon general principles, but was designed to make an exception to these general principles, to meet particular cases of hardship. I know the right of a party to call his adversary as a witness, to compel him to disclose facts against his own interest, has recently grown into some degree of popular favor/ It is for that reason, if for no other, that we should not, inconsiderately and hastily, adopt a principle, which, when tested by time and experience, will be found only to result in oppression and injustice; every bad law may, perhaps, have the honor of claiming a similar parentage. Some things, most certainly, may be urged against it. It places a good man and a bad man, in litigation, upon very unequal terms; for the one might call his adversary with perfect safety, while the safety of the other would consist in denying himself of that inestimable privilege. There is nothing in it that commends itself to our favorable consideration, We do not, however, wish to express any disapprobation of the provisions of this statute, when properly construed; but to give it the construction contended for by the defendant in error, would be to effectually remove every limitation to its provision; it would authorize a party, under one pretence or other, to swear his adversary in all eases. — 487 — Tbe required language of the affidavit is, that certain facts material to the issue are within the knowledge of the other party, and that there is no competent witness, whose testimony he can procure, by whom he can prove such facts. It would be a perversion of this statute, to so'construe it as to enable the party to call his adversary for the purpose-of giving cumulative or contradictory evidence, to compel him‘to testify to facts which transpired in the presence of many witnesses, who, in detail, relate what is said and-done on a particular occasion. It is no answer to say, that it will not be presumed that he will acquire any unjust advantage in calling a witness against his own interest, for it is a question of right under this statute. The law presumes a man will swear to the truth,, but he ought not to be compelled to do that against his own interest, short of a positive provision of law. But when we construe this statute so as to embrace a large class of cases, such as where confidence is reposed, where business is transacted in the absence of witnesses, or where the persons called to witness the transaction cannot be procured in Court, we give it a reasonable and just construction, and one that best comports with the intention of the Legislature, as expressed in the language they have used. It is the only well-defined distinction that can be made, and, if we abandon this, it amounts substantially to an unrestricted right. ( The impropriety of any other construction, can hardly be illustrated by any case better than the one before us. The law authorizing the disposition of property by will, is justly guarded by many restrictions. Great care and solemnity is required in the • execution of a will. It must be attested by two or more witnesses: these are men of the testator’s own choice ; they are indispensable to its proof, if alive and within the jurisdiction of the Court. In the case before us, both the witnesses'were called and sworn, both testified to all the facts and circumstances in — 488 — detail; both testified to the material fact set forth in the affidavit, one substantially agreeing, and the other disagreeing with the testimony of the witness offered; still the defendant in error insists that this is a fact of which he has no competent proof, and asks the benefit of this statute ; but we think he is-not entitled to it. This ground of objection, and tho only one made and urged upon -the consideration of the Court below, has not been directly met ¡by the-counsel for the defendant, in error ; but they attempt to justify the ruling of the Court upon other grounds, viz.-: ,1. They urge that the affidavit is in pursuance of the statute, and being so, the Court can exercise no discretion in-the premises. That the only power of the Court is, to pronounce upon its sufficiency, and, if it is found to be in compliance-with the statute in form and substance, then the inquiry is ended. Nothing is more certain, than that this is an application to the Court, the decision of which must depend upon the applicant’s legal rights, which rights have their foundation in what shall he made to appear from the affidavit and proceedings in the case; first, the affidavit must he in form ; second, it must be truthful; and thirdly, it must have an adaptation to the remedy contemplated by the law. If, then, the right depends upon an order of the Court, founded upon the affidavit of a party, in the progress of a cause, and the Court shall know from the proceedings then had, and of which they are hound to take notice, that the same is not true in fact, or that it is attempted to be used in a case having no application to the condition of things contemplated by the law, it cannot he successfully contended that it would be the duty of the Court to grant the order. The Court could not close its eyes to the fact, that a party had precluded himself from the right to call witnesses, by virtue of such an affidavit, to testify to facts then already — 489 — disclosed by witnesses whom he himself had produced and caused to be sworn. The administration of justice upon such a principle would be a farce. We do not wish to say that this is a subject in which a collateral issue can be formed, that the Court would hear any counter affidavits or proof of any description upon such an issue, but when in the trial of the main issue it shall appear that the party is not entitled to file such an affidavit, it is the duty of the Court to reject it. Suppose that a party should file such an affidavit in the first instance, and after Ms adversary is sworn, he should continue to call witness after witness to the same point, would it be the duty of the Court to allow the whole testimony to go to the jury? And this is the sole point upon this question, for counsel do not pretend to deny that the material fact sought to be proved by Cicotte had been testified to by other witnesses; I say witnesses, because both Johnson and Bates testified to the place where the will was subscribed. Secondly, as a further answer to this objection, the counsel for defendant in error insists that Cicotte is a competent witness, aside from the affidavit; that he is not a party to the proceeding, and being an heir-at-law of the testator, and having no provision made for him in the will, his interest is adverse to the defendant in error, and therefore competent. It is too late to take this position now. This question was not submitted to the consideration of the Court below. There the defendant insisted that the witness was made competent by the affidavit, and that was what the Court decided; the Court never decided upon the competency of this witness aside from the affidavit, and we cannot extend our inquiries beyond that point; it is true, that it is our duty to look at the whole record to see the effect of a particular ruling, and although erroneous, if we can say that the party has not been prejudiced by it, then we will sustain the judgment; but this is — 490 — not one of those cases. How can we say that Cicotte has no interest that would render him incompetent? The record shows nothing conclusive in this respect, and we cannot presume it, especially against what the defendant has conceded. If the evidence of the witness Cicotte was immaterial, and Ave could say it had no influence upon the minds of the jury, or that the evidence was sufficient to support the verdict without it, then we might very properly disregard it; and such is the rule established by the authorities; but the defendant has conceded, that this witness without the affidavit was incompetent, and he cannot ask us now to presume he was not, because the record does not otherwise show. If they had insisted upon swearing this witness without an affidavit, that would have driven the plaintiff in error to have shown his interest; but Avhether he could have done so or not, is not for us to decide. On this point then, we think the objection to this witness has not been answered, and that the Court erred in allowing him to be sworn. But there is another point in the case, equally fatal to the judgment. It is raised by the second and third assignments of error to the ruling of the Court, upon the objection to the testimony of Isaac P. Christiancy, a witness produced and sworn on behalf of the defendant in error. Christiancy Avas called to impeach the witness Johnson. Johnson had been interrogated in reference to his testimony before the Probate Court, and particularly as to whether he did there swear that he witnessed the will in the presence of the testator, which he denied. ■ Christiancy contradicted him in this particular, not in positive terms, but such was his impression. He believed that he put the question directly to Johnson, and was answered affirmatively ; afterwards, and upon his cross-examination, he insisted upon assigning his reasons for his recollection upon the subject. It is unquestionably'discretionary with the Court to allow a witness to give his reasons for remembering a particular — 491 — transaction, and perhaps, in most instances, highly proper; but a witness cannot be allowed, under such a pretence, to testify to facts which are material to the issue, and inadmissible by the rules'of law; and such was the case in this instance.' lip was allowed, under this pretence, to testify to statements made to him by the witness Johnson, which had a direct tendency to impeach him. The conversation narrated by the witness, disclosed such a feeling on the part of Johnson in reference to the disposition of this property by the will in question, as to impair, to some extent, in the minds of, the jury, his credibility as a witness. That he stated that the will was a ridiculous one, and ought not to stand. Showing that he was not unbiased, but influenced by strong motives to defeat the will, and such a state of mind would certainly have a tendency to affect his testimony before the jury. And this testimony was not admissible, because Johnson liad not been interrogated as to what he had said on that occasion. And this is not all. The witness, under the same pretence, was allowed to testify to his own statements made to his client Hilary Cicotte, in the presence of James J. and John I. Cicotte, of what was said by Johnson in such conversation, and not only what wms said by Johnson, but was allowed to express his opinion of the conduct and motives of Johnson. Speaking of the will, when handed to him by the said Hilary Cicotte, he says: I opened it, and said this looks bad (referring to the mutilated condition of the will), and I should not wonder if this was done under advice, for a certain man called on me, etc., and then repeats what Johnson had said as he had before testified, and concludes by stating to fhem that “if the will is contested, Johnson will be employed as counsel.” All this evidence was insisted upon and admitted, under pretence of explaining why he remembered that a particular question was put and answered in a particular manner before the Judge of Probate, and of which he was not certain about, after all.' — 492 — And all of this evidence was allowed to go the jury. It was inadmissible for two reasons : 1. The whole had a direct tendency to impeach the witness Johnson, and that part which related to his statements was objectionable for the reason, as before stated, that he had not been interrogated thereto. 2. Because that part of it which related to the statements made by the witness to the Cicottes, was not admissible under any circumstances, and more particularly wherein be expresses an opinion reflecting upon the motives and conduct of the witness Johnson. He might as well bave told tbe jury that Johnson would swear false, as that the will was mutilated by bis advice. It is true, this was not an expression of an opinion to the jury, but it was the evidence of sucb an opinion expressed to the Cicottes, and it may be presumed to bave bad the same weight with the jury. No witness can protect himself against such impeaching evidence; and no party can be presumed to be prepared to rebut it, and it cannot be justified, either upon principle or authority. In connection with this point in the case, it is proper to consider a further objection to the testimony of John L Cicotte, which is raised by tbe seventh assignment of error. The said John I. Cicotte was again offered as a witness to testify to the foregoing statements of the witness Christiancy made by him to this witness, Hilary and J ames J. Cicotte, claiming it as rebutting evidence. This was objected to, for tbe reason that the same was hearsay merely, and that said testimony was not rehutting evidence ; that no evidence had been introduced by contestants denying the said conversation, and that it was not a fact material to the issue. After the witness Christiancy had been sworn, Johnson bad been recalled to contradict the conversation with him as sworn to by said Christiancy, and, therefore, this so-called rebutting evidence of the witness Cicotte was insisted upon. If the statements of Christiancy to the said Cicottes had been proper evidence, it might possibly, in some sense, be — 493 — regarded as rebutting evidence; but, as it is, we can only look upon it as an attempt to corroborate the unwarrantable statements and opinions of the witness Ohristiancy, and consequently not admissible. The answer of counsel to these points of the case, is that no exceptions were taken to the ruling of the Court below, so far as relates to the testimony of the witness Ohristiancy, and so it appears from the record. The record shows, however, that objections were made to this evidence, and the particular reasons assigned why it was not admissible, and that the Court overruled such objection and allowed the witness to testify, but it does not show exceptions were at the time taken to such ruling, and, for this reason, it is insisted that these errors are badly assigned. The authorities cited by counsel are not directly in point. The rule established by these leases is, that the exception must not be too general. In the case of Jackson vs. Caldwell (1 Cow., 622), Woodworth, J., says: “That a bill of exceptions does not draw the whole matter into examination, but only the point to which it was taken, and that the party excepting must lay his finger on those points which might arise, either in admitting or denying evidence, or in matter of law arising from a fact not denied, in which either party was overruled by the Court.” No such objection is applicable to the point under consideration, and there is no reason why we should not pass upon this point, if we can do so consistently with the rules of practice. Graham, in the second edition of the work on Practice, 246, speaking of the practice upon this point, and referring to a decision of a case then recently made in the Supreme Court of New York, says : “ That where the bill of exceptions presented various objections to the admissibility of evidence and the charge of the Judge, although it did not expressly appear that any exceptions had been taken, the Court said — 494 — they would look into the matter, notwithstanding the omission, upon the presumption that the exception had been taken, from the fact of the bill being sealed.” See also the case of 6 Cow., 189, and 8 Wend., 241, where similar presumptions are recognized. We therefore think we are at liberty to consider the question raised by the second and third assignments, as well as that of the seventh, and that the Court below erred in overruling the objections to this evidence. This disposes of the case, but as it may be retried, we will briefly notice the other points. The fourth objection was not well taken. McBride was not made a competent witness by the affldavit in question. The filing of an affidavit under section 100, before cited, does not authorize the swearing of a co-defendant nor a co-plaintiflj nor any person not a party to the record. The words “other party,” in said section, have been properly construed to mean opposite party, and it being by virtue of the affidavit alone that the witness is made competent, and then only to swear to the facts set forth in , such affidavit as being within his knowledge, it follows that no other person is made competent by such affidavit to swear to such facts, notwithstanding the general language of the concluding part of said section, “ that the parties to such suit, and any other person interested in the event thereof, may be examined on oath in relation to such facts.” This construction must necessarily exclude all persons not parties to the record, and all persons who were such parties, except the opposite party, and consequently would exclude McBride. This construction would also have excluded the witness Cicotte, had objection for that reason been made. The objection to the ruling of the Court in excluding the testimony of Serena McBride, upon which the sixth error is assigned, may possibly have been well taken, but before the closing of the testimony, the Judge, having doubts as to the — 495 — correctness of his decision upon that point, offered to open the question and hear a further argument, which offer the counsel declined, and we think in justice he ought now to be excluded from being heard in this Court. The eighth assignment of error is not insisted on. The judgment in this cause must be set aside and a new trial granted, with costs to abide the event. Present, Johnson, Green, Bacon, Copeland and Martin, J. J.