Upton v. Adams' Executors

Erazer, J. This was a suit by the appellees against the appellant and one Bane, upon a promissory note purporting to have been made by the defendants and others, and payable to the testator. Bane did not answer, and judgment was rendered against him by default. ■ Upton answered in abatement, that the plaintiffs were not executors, &c., appointed under the laws of this State, and if appointed elsewhere, had never filed an authenticated copy of their letters testamentary in the court where the suit was pending. This answer was, on motion of the plaintiffs, stricken out as frivolous. He then answered in bar, in three paragraphs:. 1. General denial. 2. Matter sufficient in confession and avoidance. 3. The same matter which had been pleaded in abatement. The third paragraph was stricken out on motion. There was a reply to the second paragraph, and a trial which resulted in a verdict and judgment for the plaintiffs for the amount of the note. Upon the trial, Bane was-offered by the appellant as a witness, but was rejected by the court. The right of a foreign executor or administrator to sue is not dependent upon his filing here a copy of his letters. The statute relied on by the appellant does not require such filing at all. It merely declares, as' a rule of evidence, in case his authority shall come in question, that a copy of the letters, “produced and filed in the court, shall be sufficient evidence of his appointment.” 2 G. & H., § 159, p. 528.. We do not perceive that this language is open to construe-, tion. It cannot possibly mean anything but that which, we have already intimated. That it would be quite convenient to parties sued to be furnished by the executor with precise information of his authority may be true. This consider [434] ation is urged by the appellant’s counsel, but it cannot justify us in requiring what the legislature' has clearly not intended. It seems to us, that there was no error in striking out the answer. "We think that Bane, though sued with the appellant, was a competent witness for the latter. He was not a party to the issues to be tried, nor interested therein, and was therefore not within the exception made by the statute of 1865, (Acts Spec. Sess. 1865, p. 161,) rendering parties to the record competent witnesses. The object of the legislature, by that exception, was to prohibit a party litigant from testifying in his own behalf, where the other party to the transaction is dead, and therefore not available as .a witness, and thus prevent the robbing of estates by the perjury of parties contending with them. But a party to the record may not be a party to the issue to be tried between the executors and a co-party, indeed, he' may have no interest whatever in that issue, or his interest may he balanced, or may be with the executor. To exclude him .as a witness in such cases would be in violation of the general scope and spirit of the act. It is necessary, therefore, that the term “ party,” as used in the third section of the act of 1865, shall be held to be a party to the issue, or if merely to the record, then that he be interested in the issue in favor of the party calling him, else the legislative intent ■deducible from the whole act, and from all our existing statutes as to the competency of witnesses, will be defeated. The appellee cites Martin v. Asher's Adm’r, 25 Ind. 237, :as settling in his favor the principle governing the question, "but we do not regard it so. In that case, two questions only were considered, viz., whether .the nominal party defendant to the record, the assignor of the lost note in suit, offered as .a witness upon the trial of an issue made by the administrator of the maker, was required to testify by the “ opposite party,” in the sense of the statute, and whether the facts proposed to be proved by him were admissible under the issues. "We ruled both questions in the negative, but [435] put the case chiefly upon the last question. The matter now under consideration is very different. B. Ilill arid 6r. W. Bichardson, for appellant. W- Herod and W. W. Herod, for appellees. The judgment is reversed, with*costs, and the canse remanded for a new trial.