McGlasson v. Housel , 1906 Ill. App. LEXIS 390 ( 1906 )

Mr. Justice Brown

delivered the opinion of the court.

The question involved in this appeal arises on the consfcruction of sections one, two and three (taken together) of chapter 51 of the Revised Statutes of Illinois, being the Act in Regard to Evidence and Depositions, approved March 29, 1872.

We think the assignments of error on the ruling of the court below on the question asked one of the plaintiffs by his counsel, “ What is the book you now have in your hand ?”■—namely, that it could not be put because the witness was incompetent to testify in the cause at all, and the assignment of error on the subsequent similar and consistent ruling of the court on the formal offer of the plaintiffs to prove that the book was one of the account books of original entry kept by the plaintiffs and by the witness himself, and that it showed original entries made at the time of the transactions alleged bs^ the plaintiffs, in the usual course of business—fairly raise the question whether or not a party plaintiff in a suit where the defendant defends as the representative of a deceased person, ma}'’ testify in identification of his account book, that the same is a book of original entries, and that the entries therein were made by himself in the regular course of business and are true and just.

While it is true that after the decision of the trial judge below, which cut out of the case that on which the plaintiffs were apparently relying as their only and sufficient evidence, the further action of the court in instructing the jury to find for the defendant naturally followed—this manifestly does not prevent the error in the exclusion of testimony, if it were an error, from requiring a reversal of the judgment and remandment of the cause. If the trial judge was right in his interpretation of the Evidence Statute, the judgment should be affirmed; if he were wrong, the cause should be retried and the excluded testimony admitted.

The majority of the court, while conceding that the question is not free from difficulty, think that the- testimony offered was competent. The question has never been before the Supreme Court, but has been explicitly decided by the Appellate Court of the Second District in Alling v. Brazee, 27 Ill. App. 595. The only other allusion to it in the Reports is in the opinion in Richardson v. Allman, decided by the Appellate Court of the Fourth District—40 Ill. App. 90, 93—in which opinion the question is not decided, but it is said, with apparent approbation, certainly without criticism, that the views of the Appellate Court of the Second District on the point are expressed in Alling v. Brazee.

Alling v. Brazee is of course not an authority which we are bound to follow, but apart from the desirability of concordant decisions in the various Appellate Courts of the state, the opinion therein commends itself to us as well reasoned and supported by analogy and authority. We have, therefore, no reluctance in following it.

By the common law for centuries, through its adherence to a policy now universally regarded as mistaken, all persons interested in the event of a suit were incompetent as general witnesses. But, even then, there was an exception to the spirit of this illiberal rule, which exception allowed the introduction of books of account of an interested party (this being in fact evidence made by himself) if he were able first to prove by disinterested witnesses that he kept no clerk; that the books were books of original entry; that the entries therein were in his own handwriting; that the parties had settled by these books and found them just and true, and that a part at least of the articles charged or work done was delivered or done at about the time the entries were made. This was the state of the common law in Illinois in 1841, when Boyer v. Sweet, 3 Scammon, 120, was decided. Judge Breese in the opinion in that case, moreover, stated that in many of the states books of account were admitted, although fortified only by the oath of the party himself. FTo exception is noted by him as existing as to the introduction of such books of account made by an interested party, when the other interested party was dead, either where the books themselves had to be proven by a disinterested witness, or where they might be proven by an interested one. At this time, however, parties interested were not allowed in Illinois to testify generally in any civil case, except that by a statute first passed in 1833, a person pleading usury might, if the creditor were alive, prove his defense by his own oath.

In the Revised Statutes of 1843, however, there appeared provisions in the chapter concerning justices and constables, which were apparently first passed for that revision and approved March 3, 1845, which allowed in certain cases a party in a suit before a justice to prove his claim by the testimony of the adverse party, and if such adverse party should not appear at the trial, then by his own oath. There was nothing in these provisions excepting cases where the adverse party was defending in a representative or fiduciary capacity.

In 1861, however, by an Act approved April 24th of that year, under the title “An Act to Dispense with Bills of Discovery in Certain Cases,” similar provisions were made as to the testimony of parties suing claims in courts of record, and this Act contains a final section to the effect that it shall not be .deemed to authorize a party to a suit to testify in his own behalf when the opposite party is a body corporate, or sues or is sued as executor or administrator, or in anj7 other fiduciary capacity. This Act was supplemented February 16, 1865, by providing that it should not allow a plaintiff or defendant to testify against a co-plaintiff or co-defendant, respectively. .

In 1867 the legislature passed an Act (approved February 19, 1867), entitled “ An Act Relating to the Competency of Witnesses in Civil Cases.” The Act is in ten sections. The ninth section repeals the provisions we have alluded to of the Interest Act, and of the Justice and Constable Act, in the Revision of 1845, and also the Act of 1861, wijh its amendment of I860, before described. The tenth section merely provides when the Act shall go into effect. The first eight sections áre substantially identical, section for section, with the first eight sections of the “Act in Regard to Evidence and Depositions in Civil Cases,” approved March 29, 1872, which now appear (some of them slightly amended) as sections 1 to 8 inclusive of chapter 51 of the Eevised Statutes of Illinois, in Hurd’s and Starr & Curtis’s editions.

The first section treats of the general competency of interested parties and of parties who have been convicted of crime. The second section limits the general competency created “ by virtue of the foregoing section ” (these being its own words) by excepting certain cases' where the adverse party sues or defends in certain representative or fiduciary capacities. But to these excepted cases are made in distinct paragraphs certain exceptions in which such general competency provided for by the foregoing section is declared still to exist.

These two sections, as it seems to us, were independent of the third section, which enlarged the common law rule concerning account books by allowing such books to be proven as well by the oath of an interested party as by the oath of a disinterested one. It is as follows:

Sec. 3. “ Where in any civil action, suit or proceeding the claim or defense is founded on a book account, any party or interested person may testify to his account book and the items therein contained, that the same is a book of original entries and that, the entries therein were made by himself, and are true and just, or that the same were made by a deceased person, or by a disinterested person, a non-resident of the state at the time of the trial, and were made by such deceased or non-resident person in the usual course of trade, and of his duty or employment tothe party so testifying, and thereupon the said account book and entries shall be admitted as evidence in the cause.”

In Taliaferro v. Ives, 51 Ill. 247, decided in 1869, Judge Breese declared that it was error ■ to have refused the defendant permission to introduce in evidence his books of account after he had offered to make the preliminary proof, and said that he would have been entitled to do so without the statute of 1867, “ which does not materially change the rule announced in Boyer v. Sweet, 3 Scammon, 120.”

There seems no particular reason for making, as to the oath which will render an account book admissible, any difference between cases where the adverse party is deceased, and where he is not, and it seems to us, as it did to the Appellate Court for the Second District, that the Act of 1867, and its successor of 1872, are general liberalizing amendments to the common law rules on the subject of evidence and its production, and that section 3 of these Acts is, in the language of the learned judge who wrote the opinion in Ailing v. Brazee, “an independent section standing by itself, to the provisions of which there appears to be no exception named in the Act.” We agree with him that it is difficult to see how exceptions which are contained in section 2, and expressly limited to the effect of section 1, on certain cases, can apply at all to section 3.

The fact would seem to be that section 3 of the Act of 1867 was enacted by the legislature as a part of its general liberalizing policy to make the rule laid down in Boyer v. Sweet broader, not narrower, as it would be if construed in connection with the two preceding sections, as the court below construed it.

We are not unmindful of such difficulty as may seem to be introduced into the question by the coupling of sections 2 and 3 together in section 7 of the Act of 1867, and in section 4 of the present Evidence Act also, since the amendment of 1879. But though difficult of satisfactory explanation, these allusions seem to us to make no more for one view than the other of the question we have discussed. The view we have taken seems to be that also of the learned author of Wigmore on Evidence. (See section 1554.)

It is true that in Patrick v. Jack, Administrator, 82 Ill. 81, the question raised here was not involved, but in that case the books of the decedent were allowed in evidence in "behalf of his estate after they had been properly identified. If these books were competent, would it not be unfair and undesirable to exclude the books of the adverse party, because he could not obtain a disinterested witness to make the necessary preliminary or, as it is technically called, “suppletory” proof?

We do not think the statute requires this, or that it should be done.

The judgment of the Superior Court is reversed and the cause remanded.

Reversed and remanded.