Mix v. Marders' ex'r , 79 Ky. 131 ( 1880 )

•JUDGE PRYOR

delivered the opinion of the court.

Mix, the appellant, was the surety of Whipps to Jefferson Marders on a note for three thousand dollars. Marders ■dying, his executor instituted an action on this note, and ■the plea of usury was interposed by the surety. On the ■failure of Whipps to plead, a judgment by default was rendered against him, and on the trial he was introduced as a witness by the surety to establish the claim of usury. The •question as to the usury having been heretofore considered, it is now urged, in a petition for a rehearing, that Whipps was not a competent witness, and the judgment should have ■been reversed on the cross-appeal. Prior to the passage of tthe law making parties to actions competent witnesses, one interested in the issue was excluded, if his interest was no-greater than his liability for the costs of the action, and in the- absence of any change in the law, Whipps would be incompetent, as his liability for costs to the surety would exist; and as the law now stands, Whipps is liable to Mix for the amount the latter may have to pay; and while this is-so, it seems to us that the only interest rendering a party to-an action or other person incompetent, where he appears as-a witness to testify against the estate of a dead person, he-must be testifying for himself, so as to defeat or lessen the-claim of the personal representative against him, or increase-his demand against the estate. Subsection 2 of section 606, prohibits “any person from testifying for himself, concerning any verbal statement of, or any transaction with, or any act done or omitted to be done by, a deceased person. ” In this case there is no issue raised, or any claim asserted by the witness against the estate of the testator. The executor has a judgment for the full amount of the debt, interest, and costs, with the usury included, - against the principal, and. could have obtained no greater relief if no defense had been interposed by the surety. The issue is alone between the estate and the surety, and no greater liability can be asserted by the estate of the decedent against Whipps than has already been’fixed. His testimony neither lessens 01-increases his liability to Marders’ estate; and the fact that he may be liable to the surety for costs does not disqualify him or bring the case within the exceptions made by the statute. It was, in fact, a technical ruling that excluded the witness in such cases prior to the change made in the law; and as the-object was to enlarge instead of restricting the rule in regard, to the competency of persons offered as witnesses, we see-no reason for excluding one offered as a witness, who -is-■making no issue hostile to the claim of the estate of the •decedent, and when testifying cannot affect the amount of ■.the recovery by the personal representative against him.

The petition is overruled.