Parcell v. McReynolds

Seevers, J. 1. Evidence: exclusion: no prejudice. I. Plaintiff introduced as a witness one of the assignors of the account, who gave evidence tending to show that the account boohs of the assignors were correct, and that the charges therein were made at or near the time of the transactions, for the purpose of laving the foundation for the introduction of the boohs [624] in evidence. Such boobs were offered by the plaintiff, to which the defendant objected, but the same were admitted subject to the objection, and whether they ■were afterwards admitted the abstract fails to state. As the books were admitted, the court did not commit any error of which the appellant can complain. It is true, the court afterwards held that the evidence of such assignor was inadmissible; but this, we infer, was because the witness testified, as the court thought, to certain personal transactions with the deceased, and as to such transactions the evidence of the witness was clearly inadmissible. Code, § 3639. 2. Witness: competency: wife of decedent against executor. II. The plaintiff introduced as a witness Eliza McEeynolds, who is the widow of Solomon McEeynolds, who gave evidence tending to show that the plaintiff was entitled to recover. The defendants objected to this evidence, on the ground that the»witness -was incompetent to testify under sections 3639, 3641 and 3642 of the Code. The court held that the witness was competent under sections 3639 and 3642, but incompetent under section 3641, and therefore refused to consider such evidence. It is provided that “every human being of sufficient capacity to understand the obligation of an oath is a competent witness in all cases, both civil and criminal, except as hereafter provided.” Code, § 3636. The exceptions afterwards provided are as follows: “Neither husband nor wife shall in any case be a witness against the other, except in criminal cases prosecuted for a crime committed one against the other, or in an action or proceeding one against the other; but they may, in all civil and criminal cases, be witnesses for each other.” Code, § 3641. “ Neither husband nor wife can be examined in any case as to any communication made by the one to the other while married; nor shall' they, after the marriage relation ceases, be permitted to reveal in testimony any such communication made while the marriage relation subsisted.” Code, § 3642. [625] It cannot be doubted that Mrs. MeReynolds, under § 3636, was a competent witness, if there was no other statute bearing on that question. Counsel for the appellee do not claim otherwise. Sections 3641 and 3642 must be read and construed together, and the former provides that neither the husband nor wife shall be a witness against the other in a civil case, unless it be brought by one against the other. This section contemplates that the marriage relation exists at the time the husband or wife is offered as a witness. In this case it did not exist, but had been dissolved by death. This action is not against Solomon MeReynolds, but against his estate. In such case, section 3641 has no application, and section 3636 is not in any respect limited. Section 3642 provides that neither husband nor wife can as a witness reveal any communication made by one to the other during the exist ence of the marriage relation after such relation has ceased to exist. Now, if section 3641 has the force and effect .claimed by the appellee, section 3642 is useless, and has no force whatever. We are therefore of the opinion that the circuit court erred in rejecting the evidence of Mrs. McReynolds. Reversed.