Sawyer v. Mitchell

Scott, Judge, delivered the opinion of the court. A Witness (Hardin) for the plaintiff, on his voir dire, testified that before this suit was brought the plaintiff had given him a written order on the defendant for the sum which was in controversy in this action; that the plaintiff was indebted to him and gave him the order for the purpose of enabling him to collect the amount and apply the proceeds to the pay ment of plaintiff’s debt to him; that he did not take the order in discharge of his debt; that he presented the order to the defendant and its payment was refused; that he was authorized as agent for the plaintiff to institute this suit. On this, the defendant objected to the witness on the ground that the suit was brought for his use. The court overruled the objection and the defendant excepted. We do not see the ground on which it can be maintained that this suit was brought for the use of the witness in the sense in which that phrase in the statute is to be understood. The law declares that an interest in the suit shall not disqualify a witness. At the same time it provides that neither [511] party shall be a witness in his own behalf. We must bear this provision in mind in considering this question. There are cases in which the real plaintiff in interest (one so to all substantial purposes) is compelled to use the name of another in order to recover his rights, where he has as absolute control over the suit as though he was the nominal as well as the real plaintiff. It is to these the statute applies. An interest in the suit does 'not disqualify a witness. It is only when he is the real plaintiff in interest, compelled to use the name of another in asserting his rights, that he is disqualified. This witness was not disqualified. In no sense could it be said that this suit was brought to his use. If the suit failed, the witness would not have lost his debt. The plaintiff would still have been liable to him. He was not liable for costs. That the plaintiff intended or the witness expected to be paid out of the sum recovered, did not make him one for whose use the suit is brought. The other judges concurring, the judgment will be affirmed.