Huckabee v. Nelson , 54 Ala. 12 ( 1875 )

MANNING, J.

It is quite clear that defendant Hawks had no authority from Huckabee to sign the name of the latter to the notes sued on. He, in effect, says so himself, when he speaks of his supposition, or expectation, at the time the notes were made, that, in consequence of the conversations had between him and Huckabee, and their intimate relations, Huckabee lüould, ratify the signature. There is not any evidence, though, that it was ever ratified; and if the suit had been against Huckabee alone, the evidence of authority from him to sign his name to the note, or of his ratification of the act, was not sufficient to make the admission of the note proper.

But it was legal evidence against Hawks, and the objection of defendants ought to have been presented by a request from Huckabee to the court, at the proper time, for an instruction to the jury upon the effect of the note in this particular, and not by opposition to its admission ; which, if successful, would have excluded the note from their consideration against his co-defendant also. ,

Under section 2704 of the Revised Code, a party to a suit is a competent witness in it, except in respect to conversations, or transactions with a person deceased, whose executor or administrator is the adverse party. The object of the exception is to prevent a party to a suit from obtaining an unjust advantage of those interested in an estate, by allowing him to testify of dealings, or promises, or admissions, alleged to have been had with, or made by the former owner of the estate, who is not living to contradict or explain. Neither the letter, nor the reason of the exception, relates to matters in which the deceased did not participate, and of which he could not, for want of knowledge, testify if living. It was in respect to such matters as' these only — matters of which the deceased, Mr. Nelson, knew nothing at all — that it was proposed Huckabee should testify. Defendant Hawks was, unquestionably, responsible for the debt sued for. It was the price of valuable improvements made by plaintiff’s intestate on his premises. He is introduced by plaintiff to prove that Huckabee, at times and places, when and where deceased was not present, entered into engagements with the witness, by which Huckabee became liable to pay one-half of witness’ debt. Shall not Huckabee be allowed to oppose this witness, and deny what he has said, or explain the matter to the jury, so as, peradventure, to relieve himself from the burden of paying one-half of another man’s debt, put upon him by this man’s own testimony?

The’ question is presented in this form not because we have any reason to believe Hawks did not testify truly, but to show to what consequences the decision.made upon this point in the court below, might easily lead, if it became a rule of practice. The .court erred in refusing to permit Huckabee to testify in respect to transactions and conversations had, not with the deceased intestate of plaintiff, but with Hawks, and which the latter had been introduced by plaintiff to prove.

It is insisted for plaintiff that if this court should reverse the judgment for error against Huckabee, it should be affirmed against appellant Hawks, there being no error to his prejudice. Courts of-law never split one action into two or more — as would be done in this by the course proposed— and leave one part of it in one court and one in another court. A plaintiff must pursue his one suit against several persons, as he brought it, to its conclusion as a single cause, unless as to some or one of the defendants it is abated, or is otherwise legally discontinued..

As the other points presented may not rise again, it is not necessary to pass upon them.

For the error of excluding Huckabee as incompetent to testify to any matter in the cause, the judgment is reversed, and the cause remanded.