Burris v. Whitner ( 1872 )

The opinion of the Court was delivered by

Willard, A. J.

The conclusion of the Circuit Judge, as affecting the competency of testimony of the plaintiff is free from objection. An objection raised to the testimony of a party, under Section 415 of the Code, is to be treated as on the same footing with all other objections going to competency. The practice, as established, is correctly stated by the Circuit Judge. In order to bring before this Court a question of competency as affecting testimony, it is necessary that the objection should have been taken in time upon the trial, and that such fact should appear by a proper exception.

The time to object to the incompetency of a witness to speak as to any particular matter, is when the testimony is offered. It would be unfair to allow a party to postpone his objection as to competency until after the testimony has been given, for in that case he would be enabled to retain the evidence if it enured to his advantage, and to exclude it if it made against him. Such speculative advantages are discountenanced by the Courts.

The first ground of appeal is not well taken, for the case did not wholly depend on the authority of Osborn to subscribe the name of Whitner to the renewal note. The consideration of that note was a partnership debt, and'that was in itself sufficient to support the plaintiff’s demand.

The question of notice of the dissolution was one of fact, and could only be determined inferentially and probably, owing to the character of the testimony offered. Such an inference it is peculiarly the province of the Judge who tries the question of fact to determine. And as there is no clear proof to contradict his conclusion, and it is not made to appear that he has violated any rule of law applicable to such an inquiry, there is no ground to disturb his conclusion.

The appeal should be dismissed.

Wright, A. J., concurred. Moses, C. J., absent at the hearing.