Combs v. Black

Chalmers, J., delivered the opinion of the court. It was decided in McCutchen v. Rice, 56 Miss. 455, that in a suit by or against a firm, one member of which was dead, the adversary party was not an incompetent witness in his own behalf. In that case the transaction as to which the party proposed to testify had occurred with the "surviving member of the firm, and because some stress was laid in the opinion upon this fact, the circuit court in the case now before us hold that where the transaction about which the adverse party proposed to testify had occurred between the witness and the deceased member of the firm, the former was incompetent to testify. This was erroneous, as is shown by the case of Love v. Stone, 56 Miss. 449. It was there declared that the test in this class of cases is whether the estate of a deceased person is the subject-matter of the litigation then pending. If it is the adversary party is incompetent, but he is not rendered so because of the fact that the estate of a deceased person may be [834] come ultimately liable in another suit by reason of the result reached in the suit then on trial. The estate of the deceased partner is not the subject-matter of a suit by or against the firm of which he was a co-partner while living, and hence its ultimate liability to the surviving members of the firm will not render the adversary party to such suit an incompetent witness. In this case Combs, though a party to the suit, was a competent witness in the suit brought against him by the firm of Menken Brothers, notwithstanding the fact that he proposed to testify as to occurrences between himself and Iglaner, the deceased member of the firm. Reversed and new trial awarded.