Jaquith v. Davidson

The opinion of the court was delivered by Brewer, J.: This suit was originally brought before a justice of the peace by George Davidson, in his lifetime, December 16, 1876, on affidavit for replevin, alleging value at and asking for $50. This allegation of value was never changed. During Davidson’s life, suit was tried before a justice of the peace, and once in district court, where Davidson had taken the case by appeal. George Davidson died May 13, 1877, and the suit was revived September 18, 1877, in the name of present defendant in error, in her representative capacity. Three errors are alleged : I. Verdict and judgment were for sixty dollars, when the allegation of value and claim were only fifty dollars. The jury found the value to be sixty dollars, but awarded no damages for the detention. The matter was expressly called to the attention of the court on the motion for a new trial, but the court overruled the motion, and rendered judgment for the possession of the property, or sixty dollars, its value. This was error. The code of procedure before justices (Gen. Stat. 789, § 62) reads: “The affidavit of the plaintiff as to the value of the property shall fix the jurisdiction of the justice so far as such value is concerned, but the value of the property shall not be assessed against the defendant at a greater amount than that sworn to by the plaintiff in his affidavit.” But if this were the only error, it could be corrected by a modification, and would not require any reversal of the judgment. A second matter complained of, is in the admission and rejection of testimony. Mrs. Davidson, the executrix and widow of George Davidson, was called to the stand as a witness in behalf of the plaintiff, and testified generally and as to statements made by the defendant in the presence of said George Davidson, but did not testify as to any communication between her said husband and herself. The defendant thereafter offered to testify as to statements made to him by the deceased in the presence of Mrs. Davidson, but the court rejected the testimony. In this is claimed the error. It does not appear that the testimony of the two parties referred to statements made at the same time and conversation, but it is probably immaterial one way or the other. This is a matter regulated by statute, and by it the question must be decided; and though in this case it may operate harshly, we may not substitute a rule of our own for the express direciion of the legislature. And this express direction seems to us clearly to sustain the rulings of the district court. The general rule is, that no one is disqualified as a witness by reason of interest as a party to the action, or otherwise. (Gen. Stat., p. 691, §319.) "With no other provision, each party would'have been competent to testify as to all matters within their knowledge. The only limitation on the plaintiff, is to be found in §1 of cb. 165 of the laws of 1872, which provides that the following persons shall be incompetent to testify: . Third, Husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the other, or when they are joint parties and have a joint interest in the action; but in no ease shall either be permitted to testify concerning any communication made by one to the other during marriage, whether called while that relation subsisted, or afterward.” Now Mr. Davidson being dead, she was no longer testifying for or against him. The only parties now interested on the plaintiff’s side were the heirs, of whom she was one, and the creditors. In testifying, she, like any other party, testified in her own behalf; none of her testimony violated the last prohibition or pretended to touch upon any communication between herself and husband. Those communications are privileged, or rather the parties themselves may not disclose them upon the witness stand, though they are competent if they can be obtained from any other source. (State v. Buffington, 20 Kas. 599.) Her testimony was therefore properly received. She was not disqualified because she was a party, nor because she was a widow, except as to certain special matters, and upon them she did not offer to testify. His testimony, on the other hand, as to the statements of the deceased, was as properly rejected. Gen. Stat., p. 691, §322, provides that— “No party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person, when the adverse party is the executor, administrator, ... of such deceased person, where they have acquired title to the cause of action immediately from such deceased person.” That covers this case exactly. The testimony sought to be introduced was communications had personally between a deceased person and the party. The adverse party was the executrix of such deceased person, and as such executrix she derived title to the cause of action immediately from her testator. Many words could not make this plainer. The court decided in accord with the plain commands of the statute, and therefore did not err. We have noticed these matters, notwithstanding the fact that in the remaining question we think there appears error which compels a reversal, because their decision may assist in the future trial. That remaining question is involved in the ruling of the court upon an application for a continuance. Matters of continuance are, as has been often said, largely within the discretion of the trial court, and it must clearly appear that substantial wrong has been done a party in a ruling thereon before a reversal of a judgment will be ordered. In the case at bar, while the writer of this opinion, does not think such wrong clearly shown, yet his brethren are of the opinion that upon the showing made the defendant was entitled to a continuance, and that it was material error to refuse it. The facts are, that the case was forced to trial on the 19th of September, .the day after the revivor. Postponement was sought, to obtain the deposition of the nephew of defendant, whose testimony would, as shown by the affidavit for postponement, have been competent and material. An effort had been made to obtain the deposition of this witness at Detroit, but the notice therefor forwarded to Detroit had been returned unopened. Whether this was before the death of Davidson, we are not advised; but probably it was, as the affidavit showed that the witness had been for some months a resident of Toledo, having removed thither from Detroit. While the action stood suspended by the death of Davidson, a second effort had been made to take the deposition at Toledo. Notice therefor was mailed on September 8th, the deposition to be taken on the 15th. No deposition arriving, a telegram was sent to Toledo, inquiring the cause, to which a reply came from the witness, stating that he had been temporarily absent from the city, and requesting a new notice. From the showing, it would seem clear that the whereabouts of the witness was known, that he-was willing to give his deposition, and that in all probability it could be obtained in a few days. Under those circumstances, the court is of the opinion that the party had used due diligence, that the testimony was competent and material, and that the party was entitled to a postponement in order to obtain it. We do not understand that a party is under obligations to take depositions while a case stands suspended by the death of the adverse party, even if depositions so taken could be considered as legally taken and properly used on the'trial. But qucere: Are such depositions legally taken ? Is there any party or attorney upon whom notice therefor can legally be served ? Is not such a deposition a purely ex parte proceeding ? He is not bound to presume that a revivor will be had, and may wait until the revivor is actually made before himself taking any steps in the case. After the revivor in the case at bar, the defendant had no time to obtain this testimony, and it does not appear that he was lacking in diligence in not obtaining the deposition before the death of the adverse party. For these reasons, the court is of the opinion that it was error to overrule the application for a postponement, and compel the defendant to go to trial without such testimony, and in the judgment of a majority of the court the error is of sufficient moment to compel a reversal. The judgment of the district court will therefore be reversed, and the case remanded with instructions to grant a new trial. All the Justices concurring.