Perry v. Hodnett , 38 Ga. 103 ( 1868 )

Brown, C. J.

The main .question in this case, is whether Hodnett, the defendant, was a competent witness under the Act of 1866, to prove that he was not interested in the original consideration for which the note was given, and was, in fact, only a surety.

The statute declares, that no person offered as a witness shall be excluded by reason of incapacity from crime or interest, or from being a party, from giving evidence, etc. To this general rule, there are certain exceptions, of which the following is the only one that bears upon this case. Its language is:

1. “When one of the original partieá to .the contract or cause of action, in issue, or on trial, is dead, or is shown to the Court to be insane, or when an executor or administrator is a party in any suit, on a contract of his testator or intes-' tate, the other party shall not be admitted to testify in his own favor.”

We think the proper construction of this clause is, that the parties must have been on different sides of the contract, or cause of action, 'or must be opposing parties, with conflicting interests in the issue on trial, to exclude the survivor as a witness, on the death of one of the parties. In this case, White and Hodnett, as maker's, were on the same side of the original contract, and in the original suit, were sued together, by Perry, and judgment rendered against them, as makers, and Powell, as endorser. Neither White nor Powell entered an appeal. At the time of the rendition of this judgment, Hodnett was absent in the military service, and after his return home, he alone entered an appeal, within the time specified by the Ordinance of the Convention of 1865, and set up as a defence that he was, in fact, a surety to the note, without, interest in the consideration; which fact did not appear upon the face of the note. Berry is mentioned as plaintiff, and Hodnett as defendant, through the entire record, after the appeal, including the bill of exceptions. In'the mean time, White, the other maker, died, and his estate was not represented in any of the litigation subsequent to the appeal. The original judgment remained against him and Powelí, unreversed and unsatisfied. The only question on trial was between Perry and Hodnett, and the judgment to be rendered on the trial of this issue, could in no way affect the interest of White’s estate, as he was not a party to the issue on trial; and in ease the estate should pay off the original judgment, and sue Hodnett for contribution, this judgment could not be evidence in his favor against the estate, which was neither a party to this issue, nor in any way represented on the trial. In case such an action should hereafter be brought by White’s representative against Hodnett, their interests would then become antagonistic, and they would be opposing parties to the “ issue on trial.” In that case, White being dead, Hodnett, the opposing party, would not be a competent witness in his own favor.

2¡ But it was insisted, by the plaintiff in error, that Hod-nett ought not to be released, admitting all he states in his testimony to be true, as it was not proven that Powell, the payee and holder of the note, knew that Hodnett was a surety when he agreed, for a valuable consideration, to extend the time of payment. We do not think it necessary to enter into a discussion of the question here raised, as we ■ are satisfied upon an inspection of the record, that there was sufficient' evidence that White, alone, was to pay the note, to sustain the finding of the jury; and as the presiding Judge was satisfied with the verdict, we will not disturb it on this ground.

3. The record in this ease, discloses the fact that the note in question was given for slaves, and rested upon no other consideration. Since the trial in the Court below the new Constitution has been adopted, -which contains the following language: “Provided, that no court or officer shall have, nor shall the General Assembly give jurisdiction .or authority to try or give judgment on, or enforce any debt, the consideration of which was a slave or slaves, or the hire thereof.” Counsel, for defendant in error, moved to dismiss this- case, on the ground that neither this Court, nor any other court in this State, can entertain jurisdiction of this case, under the above provision of -the Constitution. The Court agreed to consider this motion in Connection with the record. After a careful consideration of the questions made in the record, we are satisfied that the judgment we pronounce upon them renders it necessary to decide the question raised by the motion to dismiss. We therefore affirm the judgment of the Court below.