Hodge v. Coriell

Beasley, Chief Justice. This disputed evidence seems to me to have been properly admitted. A party to a suit is not prevented by the law of this state from testifying, with respect to the declarations of an interested deceased person touching the subject of the controversy, except in one specified condition of affairs. Such exclusion arises only when the party testifying, or the opposite party, is suing or is being sued in a representative capacity. It is not enough that one [457] of the parties is interested in the subject of the litigation as the representative of a decedent. The statutory criterion is clear and definite, and it is that one or other of the litigants must appear upon the record as a party suing or being sued in a representative capacity. The statute of 1880 does not repeal this criterion. Its effect is to make admissible in a specified degree the testimony of parties to the suit, even though a representative be one of such parties. In the present instance it is obvious that the defendant was not sued in a representative capacity. The plaintiff asserted no claim against him in that capacity either in his writ or declaration. The claim that he set up in his plea, that he was entitled to the property in dispute in right of his intestate and in his character as administrator, could not alter his position as a party to the record. He was sued as an individual, and the judgment would pass either for or against him in that form. The defendant in this writ and declaration is called to account for a tort in his own person. With regard to any estate represented by him, the plaintiff has no concern; that estate may be wholly insolvent, and yet the defendant be liable for their damages and costs. The defendant could not be sued in this matter in his representative capacity. The law does not admit of it, and it would, therefore, be singular so to interpret this record as to find in it that which must be excluded by legal rules. Even if the defendant should be personally insolvent, and the estate which he says he represents should be solvent, the plaintiff could not direct his remedy against either, but only against the former. If, therefore, the theory is to be resorted to thát in this instance the defendant is sued in his representative capacity, it can be not with a view of strengthening the plaintiff’s remedy, but merely to work the defendant’s exclusion as a witness. It may be that the interest of the party in the cause of action, by reason of his being the representative of a decedent, rather than his status as a party suing or being sued, would, in some respects, be the better criterion for the exclusion of the adverse party. But such a rule would be open to the objection that the application of the criterion [458] would depend not on a patent circumstance, such as the attitude of a party on the record, but on the latent fact of an interest subject to dispute and which might not appear until the later stages of the trial. Thus, in this case, there was a first plea of non eepit. On the opening of the case, therefore, the plaintiff would have been on that issue very clearly a witness. Is such testimony to be subsequently overruled when the defence comes in ? Such incongruities are avoided by reading the statute as the rules of construction require, according to the plain meaning of plain terms. I can, perceive no legal ground on which this clear language is to be subjected to judicial alteration under the notion that the court can improve on this legislation. Let the Circuit Court be advised accordingly. Justices Dixon and Magie concurred.