Hedges v. Aydelott , 46 Miss. 99 ( 1871 )

Simball, J.:

The only point seriously made by the plaintiff in error, was that the nominal plaintiff, Aydelott, was incompetent to testify when objected to by the administrators of the deceased indorser of the note. A party to the record cannot be compelled to testify, when called by his adversary, nor in his own favor, if objected to. 2 Smedes & Marsh. 136. In Smith v. Elder, 7 ib. 511, the nominal plaintiff was permitted to testify, against the objection of the plaintiff’s counsel, he not making objections himself. These cases were decided under the common-law rules. The nominal plaintiff presents in a court of law the only title which can be noticed, therefore the name of the usee may be stricken out, or, if he dies, it is not necessary to revive in the name of his legal representative. 7 Smedes & Marsh. 357; 26 Miss. 540; Code, art. 190, p. 510. “ No person, whether a party to a suit, or otherwise, shall be incompetent witnesses by reason of interest in the result, or in the record.” * * * It follows, therefore, that Aydelott was competent, although he was a party to the suit. The proviso to the article does not affect him, unless he was interested to establish the claim against the estate of the decedent — “To establish. his own claim to an amount exceeding $50.” The policy of the statute is expounded in Lamar v. Williams, 39 Miss. 347, and Jordan v. Faler, 44 ib. 291. A living-party plaintiff or defendant in an action, in which the representatives of a decedent’s estate are a party, shall not be competent to establish his demand, or right asserted and relied on, in the action against the estate.” In Griffin v. Lowe, 37 Miss. 460, it is said the statute meant to exclude one party when the other being dead could not be present to confront him. It reaches both to the establishment of a claim and a discharge from it arrested in behalf of an estate. The answer to the exception taken to the witness is, that he was asserting no right, debt or demand against the defendants, or any one of them, in the suit. He had no interest in the note, or debt due by it. The paper was taken by him as agent for the usee. The form of the indorsement passed the legal title to him. The dry, naked legal title was all he had, without right to the money. However the suit might be determined, it would neither establish a right or demand, nor discharge any claim in his favor against any of the defendants. But the policy is to exclude testimony which might relate to matters and transactions had with the deceased and litigated in the suit with no possibility of being confronted with him, so that both sides might be heard. We do not think that a contingent liability for costs, as nominal plaintiff, is such a “demand or claim,” that incapacitates. But, if this witness was incompetent, there is abundant testimony from another witness, to the same facts, to sustain the verdict; and if so, there should not be a reversal because Aydelott was incompetent and ought to have been excluded.

The demand and notice are sufficiently proved. There is no merit in the newly discovered evidence as a reason to set the verdict aside.

Judgment affirmed.