Spencer v. O'Bryant , 140 Miss. 474 ( 1925 )

^* Headnotes 1. Witnesses, 40 Cyc., p. 2212; 2. Husband and Wife, 30 C.J., Section 171; 3. Pledges, 31 Cyc., p. 824. Mrs. Marion Spencer filed affidavit in replevin in the court of a justice of the peace for the recovery of the possession of a diamond ring, alleged by her to have been unlawfully detained by W.J. O'Bryant, which resulted in a judgment in favor of the defendant. The case was appealed to the circuit court, and, upon trial being had, the court gave a peremptory instruction for the defendant, and the verdict of the jury and judgment of the court was entered accordingly.

Mrs. Spencer testified that the diamond ring had been given her by her husband, Monroe Spencer; that they moved to Laurel; and that with her knowledge and consent the ring in question was pawned by her husband, and it afterward developed that he pledged the ring to Buntin to secure money with which to buy the necessary furniture, which was one stove and one refrigerator. Soon afterwards the husband and wife separated, and neither she, nor any one for her, tendered the amount of the pledge to Buntin or O'Bryant. The affidavit in replevin with the return of the sheriff on the writ and the defendant's bond, together with the statement of Mrs. Spencer, was all the testimony offered by the plaintiff. The defendant, O'Bryant, testified that he received the ring as a pledge for thirty-five dollars loaned Monroe Spencer, the husband, for thirty minutes, and later in the day he did not pay the amount of the loan and pledged the ring for an additional fifteen dollars. The plaintiff's husband, Monroe Spencer, testified that the thirty-five dollars obtained from O'Bryant was used to pay Buntin, and that he owed Buntin on account for desired repairs of the ring. The plaintiff objected to the testimony of her husband on the ground that he was an incompetent witness to testify against his wife; it appearing that they had not been divorced, which was overruled.

Upon conclusion of the testimony, the plaintiff moved the court to direct the jury to find for the plaintiff, and there is an agreement in the record that the court declined plaintiff's instruction, but granted the instruction directing the jury to find for the defendant.

Section 1916 of the Code of 1906 (section 1576, Hemingway's Code), is as follows:

"Husband and wife may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them."

This was a suit between the wife and a third party, and we think the witness Monroe Spencer was incompetent to testify on behalf of the defendant against his wife, as under the common law husband and wife were incompetent to testify either for or against each other, and section 1916 does not authorize the one spouse to testify against the other except in controversies between them. See Strauss v. Hutson, 104 Miss. 637, 61 So. 594, and authorities there cited.

However, we think the plaintiff's own statement that the ring left her possession to be pawned without restriction by her husband for money with which to purchase the stove and refrigerator, which articles she had taken over to herself upon the separation, and that she did not know whether or not this pledge had been paid, constituted authority for the husband to pledge the ring, and that, the amount of the pledge not having been paid or tendered by her, she was not entitled to recover; in other words, with or without the testimony of her husband the defendant was entitled to a peremptory instruction.

Affirmed.