Becker v. Foster

Mr. Presiding Justice Gary delivered the opinion of the Court. This is an action by the appellee for damages for the death of Adam Mueller, of whom the appellee is administrator, caused, as is alleged, by the negligence of the appellants. • The action was commenced against Jacob Becker, father of the appellants, and after more than two years had passed since the injury to the deceased, these appellants were brought into the case as defendants by amendment. They pleaded the statute of limitations, to which the appellee replied fraudulent concealment of the cause of action, but we find it unnecessary to comment upon that part of the case. It is not assigned as error that the replication is insufficient to support the. judgment, and we will not discuss whether the replication is proved. The appellee called the appellant Nicholas as a witness, and he testified.- When the appellants were putting in their defense, they put him upon the stand as a witness and he testified, without objection by the appellee, to his competency. But to several questions to him, material to the defense, the appellee objected, and the objections being sustained, the appellants excepted. The ■ brief of the appellants, and the assignment of errors, question the act of the court in sustaining such objections, and the only justification offered by the appellee is that Nicholas was not a competent witness, as the suit was against him by an administrator, citing Sec. 2, Oh. 51, B. S., “Evidence.” The general question of his competency does not arise on this record. The appellee waived it by putting him on as a witness for the appellee, as well, as by making no objection when he was called as a witness for the appellants. 1 Greenl. Ev., Sec. 421; 2 Ph. Ev., Cowen & Hill’s Ed., 872; Hippie v. De Puie, 51 Ill. 528; Doty v. Doty, 159 Ill. 46. For the error in sustaining such objections the judgment is reversed and cause remanded.