Dabney v. Mitchell , 66 Ala. 495 ( 1880 )

BBICBELL, C. J.

The judge of the Court of Probate, in the exercise of the larger part of the jurisdiction with which he is clothed, whenever proceedings in the court assume an adversary form, and questions of fact are involved, stands in the place of both judge and jury. All questions of law are decided by him, and all question^ of fact are, of necessity, found by him ; for it is in but few cases, of which the present is not one, that a jury may be impanneled to try disputed matters of fact. These are submitted to his decision, and his findings have much of the force and effect of the verdict of a jury. Though his decision, on questions of fact, is revisable on error, when all the evidence is shown by the record, the well settled rule is, not to disturb it, unless it is manifestly erroneous.—Kirksey v. Kirksey, 41 Ala. 626; Harwood v. Harper, 54 Ala. 659.

In this proceeding, as is allowable, and the usual practice, the evidence consists wholly of ex-parte affidavits. These, it was the duty of the judge to examine, carefully and deliberately, and to weigh impartially. Though, as is said by Parker, J., in Morse v. Morse (11 Barbour, 510), there is but little to be found in the books on the subject of the competency of a judge to testify in a matter pending before him, it is laid down as a general rule in the elementary books, that he is incompetent, and, so far as we have found adjudications, they support the rule. — 1 Whart. Ev. § 400; 1 Greenl. Ev. § 364; Morse v. Morse, 11 Barb. 510; Ross v. Buhler, 2 Mart. N. S. (La.) 312; McMillan v. Andrews, 10 Ohio St. 112. Though, in this case, the affidavit of the presiding judge was taken before an officer having authority to take and certify affidavits, and he was not under the necessity, as judge, of administering to himself an oath as a witness, there remained duties he was bound to discharge, and which he alone could discharge, inconsistent with the relation of an affiant, or witness. If his competency as a witness was assailed, that question he must as judge have decided. If his credibility was impeached, as judge he must have decided whether his credit was impaired, or destroyed, or sustained. His own testimony, he must have compared with that of the other witnesses; and such a comparison, it is not to be supposed, could have been made impartially. We are of opinion, the judge properly ruled that his affidavit was inadmissible.

When it is proposed to impeach a witness, by evidence that he has made verbal statements out of court, inconsistent with the evidence he gives on the trial, the rule has, in this State, been rigidly enforced, that to avoid surprise, and to afford him a fair opportunity of explaining the inconsistency, if explanation can be made, his attention should, by a cross-examination, be directed, as for as is practicable, to the time, place, and person, as well as the matter, involved in the supposed contradiction. — 2 Brick. Dig. 448, §§ 117-121. In this proceeding, as there was no opportunity of cross-examination, the evidence consisting of ex-parte, affidavits, the attention of the witnesses could not be directed to previous statements made by them, inconsistent with their sworn statements which were before the court. The only mode of introducing such statements was that pursued, by counter affidavits. If these affidavits are inadmissible, the defendants are deprived of their right in this mode to impeach a witness, and the court may be compelled to render a judgment, based on evidence it would reject, if the contradictory statements were proved. The rule is founded in justice and mercy to the witness — it is intended for his protection ; and it cannot be allowed to operate, so as to exclude evidence introduced in the only mode in which the party has the right of introducing it. When he has no right, and no opportunity of cross-examination, he can not afford the witness the opportunity of explanation. If the opportunity is claimed, when the affidavits proving the inconsistent statements áre introduced, it would lie within the power of the court to receive an additional affidavit from the witness; but the affidavits proving the inconsistent statements of necessity form an exception to the general rule.

No particular objection was stated to the affidavits of Teague and Smith, proving the statements made by Heflin, inconsistent with the statements contained in his affidavits; and we can conceive of none other, than that his attention had not, by cross-examination, been called to his former statements. This was not, in this proceeding, practicable, and the Court of Probate erred in the exclusion of these affidavits. The affidavit of Bolt, showing the course of business pursued in the office of the judge of probate, when it is claimed the last decree was rendered and entered of record, may, of itself, be of but little value; yet it cannot be said to be irrelevant, and without a tendency to show that, if the decree had ever existed, it would not have been found elsewhere than on the book in which it is averred by Heflin to have been entered. There was error in excluding the affidavit.

We do not see that the advice given Osborne by Heflin is capable of affording any reasonable presumption or inference in reference to any fact in controversy, and are of the opinion it was properly excluded. The record of the former proceedings in the Court of Probate, to amend nunc pro tunc the record now averred to have been then lost, and the account filed by Mitchell for a final settlement, should have been received in evidence. Each was a proceeding inconsistent with the present proceeding. If the record of the decree was lost, it was incapable of amendment nunc pro tunc. If such a decree had existed, it was a bar to any other final settlement of the guardianship, voluntary, or compulsory. The inconsistency between these acts of the appellee and the claim now asserted, it may be, can be satisfactorily explained. They are, nevertheless, proper evidence to be considered in determining a material inquiry in this cause, — the former existence of the decree proposed to be substituted. The minute-book containing entries of the proceedings of the court, and of all decrees similar to that claimed to have been entered elsewhere, should have been admitted. It was a very material fact, that this single decree is the only one rendered by the court not found there to have been entered.

In all proceedings of this character, the primary courts should, as was said in McLendon v. Jones, 8 Ala. 301, proceed with the utmost caution. A substitution should be made only on clear and satisfactory evidence of the former existence, contents, and loss of the record .proposed to be substituted. If “the evidence leaves the matter doubtful, or úncertain, the motion ought to be denied.”—Adkinson v. Keel, 25 Ala. 551.

We do not deem it proper now to consider any other question involved in the assignment of errors. If they arise again, it will be probably under a different state of facts.

^Reversed and remanded.