Wendeling v. Besser

Day, Ch. J. l. evidence: where adverse tor: husband and wife. • — -I. To sustain the issues on his part the plaintiff offered to read in evidence the deposition of his wife, Magdalene "Wendeling. The defendant ° .. _ , to this deposition on the ground J c that the wife oí the plaintiff was incompetent to testify against the executor of a deceased person, under the provisions of section 3982 of the Revision of I860* The sustaining of this objection is the first error assigned. Section 3980 of the Revision provides that, “ on the trial of any issue joined * * * no person shall be disqualified by reason of his interest in the same; or, in the event of the same, whether such interest be as a party thereto or as otherwise.” Section 3982 engrafts an exception upon the operation of section 3980. It provides, that “ no person shall be allowed to testify under the provisions of section 3980 where the adverse party is the executor of a deceased person, when the facts to be proved transpired before the death of such deceased person.” It follows that, if the competency of the wife, as a witness for the husband, depends upon the provisions of section 3980, she is, by section 3982, rendered incompetent, when the adverse party is the executor of a deceased person. It was held, however, in the ease of Russ v. Steamboat War Eagle, 14 Iowa, 364, that the prohibition of the wife, as a witness for the husband, is not founded on her interest, but upon the interruption which the allowance of such a practice might produce in the domestic harmony of the parties, on grounds of policy appertaining to the domestic relation. If, therefore, the ground of the wife’s exclusion was not that of her interest, her competency does not depend upon the provisions of section 3980, and consequently she is not, in the case at bar, rendered incompetent by section 3982. It follows, from the views above expressed, that the court erred in excluding the deposition offered. • [250] 2. statute oe : count. [249] II. The court instructed the jury as follows, to wit: “ Under our statutes, a cause of action founded on an un [250] written contract must be commenced within five years after the cause of action accrued: but, when there is a continuous, open, current account, the cause of action shall be deemed to have accrued on the date of the last- item therein, as proved on the trial, and I am of the opinion that the claim sued on is not such a continuous, open, current account as to bring it within the application of this statute.” In the giving of this instruction lies the remaining alleged error. We incline to the opinion that the instruction is erroneous. If the keeping and providing for, by plaintiff, of the person named was continuous and uninterrupted, it would, in our judgment, constitute such open, current account as would be within the provisions of the statute. The judgment of the circuit court is reversed, and the cause remanded. Reversed.