Englehart v. Richter , 136 Ala. 562 ( 1902 )

TYSON, J.

We know of no rule of practice that required the court to try the issue presented by the pleas of the defendant, Mary Englehart, separately and to accord to her the preference of having her pleas tried first; in other words, to grant to her a severance in the trial of the cause. Hers were pleas in bar as were the pleas of her co-defendant.

It is doubtless true that the burden of showing incompetency of a witness is upon the objecting party. But where, as here, the suit is by an executor upon a note executed by the defendants to his testatrix, we apprehend that the burden of showing incompetency is borne and discharged, when the witness offered in defense, is one of the defendants. The record, we think, sufficiently discloses the fact that the witnesses, William and Mary Engl chart, were the defendants in the cause, and they were, therefore, incompetent to give “testimony whose direct office ajad purpose are to corroborate or * * * strengthen other evidence given of a transaction with or statement hv” the plaintiff’s testatrix with William, as testified to by Hattie. Bairn. — Miller v. Cannon, 84 Ala. 59; Payne v. Long, 131 Ala. 438. The dictum relied upon in Frank v. Thompson, 105 Ala. 219, as supporting a contrary Hew was declared in Payne v. Long, supra, to be wrong. Mary Englehart, being a defendant and one of the makers of the note Avas clearly not competent to testify “for whose debt the note ivas given.” This statement, if alloAved, would certainly haAre involved a transaction Avitb the decedent Avhose estate is interested in the result of the suit. — § 1794 of Code. The manifest purpose of it was to prove the fact, alleged in her plea that the debt evidenced by the note was that of her husband.

The only objection taken in the court below to the admission of the testimony of the witness Bichter, offered bv plaintiff in rebuttal for the purpose of showing that the receipt which had been introduced in evidence by the defendants was not genuine, was that he was not shown to be an expert. The objection urged here is. that he Avas, as an expert, permitted to state matters as facts, instead of in the form of an opinion. This is clearly a shifting of position — practically an abandonment of the objection taken. The objection now urged, not having been raised in the court beloAv, of course can avail nothing. And the merits of the objection really taken not being insisted upon here will not be considered.

It is next insisted that the general affirmative charge, with hypothesis, requested by defendants, should have been given. This is upon the theory that the evidence shows without conflict that William Eng'lehart had paid the note and, therefore, his plea of payment had been proved. After a careful consideration of the evidence, we are of the opinion that the question of payment vel non was properly left to the jury. While it is true that the defendant, Mary, made proof of the fact that she was a married woman, this did not prove or tend in the remotest degree to prove the other fact alleged in her plea— that the note was given for the debt of her .husband. As to this latter fact, there is not a scintilla of evidence. Her plea was, therefore, not proven.

There is no merit in the contention that the action was by Richter as an individual and not in his representative capacity. While it is true the summons and caption of the complaint reads “Win. Richter, executor/’ .etc., omitting the word “as,” the body of the complaint clearly shows that he is suing in his representative capacity — “as executor of the will and testament of Anna King,” etc.; and this must control. — Lucas v. Pittman, 94 Ala. 616.

There is no error in the record, and the judgment must be affirmed.