Gill v. Campbell , 24 Tex. 405 ( 1859 )

Wheeler, C. J.,

on application for a rehearing.—The cases cited in support of this application, are not in point. This is not the case of a suit by the judgment debtor to recover back property sold, and purchased by the judgment creditor under a void judgment, or void process. A recovery by this plaintiff would not revive the judgment of the defendant, Gill, agaihst his co-defendant. Nor is it the case of a witness whose interest is balanced, or is adverse to the party calling him. If the effect of a recovery by the plaintiff would have been to revive the judgment in favor of the co-defendant, as supposed, that would not have balanced the interest of the witness. That occurs where the witness is equally interested on both sides of the cause; so that his interest on one side is counterbalanced by his interest on the other. But if there is a preponderance in the amount or value of the interest on one side, the witness is interested to the amount of the excess, and is disqualified to testify on that side. (1 Greenl. Ev. § 420.) The judgment was greatly less than the plaintiff’s demand against the witness, which the effect of the witness’s testimony was to satisfy with the property in controversy. But it was not a case of the preponderance of interest, merely, in favor of the party calling the witness. His interest was all on that side.

It is suggested, that the objection of interest was not made to the witness at the trial. It was not, in terms. But the third objection, stated in the bill of exceptions, is, that “ from the state of the pleadings, the defendant, D. C. Campbell, was not a competent witness for the plaintiff,” &c. We are thus referred to the state of the pleadings for the ground of objection; and they present him in the attitude of an interested party to the suit. That is the attitude in which both the second and third grounds of objection, stated in the bill of exceptions, sought to present him; and we think the objection well taken. We see no cause to doubt the correctness of the judgment heretofore rendered, reversing and remanding the case.

Rehearing refused.