Roberts v. Longley ( 1874 )

Gould, Associate Justice.

The record shows a bill of exceptions to the ruling of the court in admitting testimony; but as that ruling is not assigned as error, it will not be noticed.

The only other position urged in appellant’s brief is that the court erred in refusing a new trial. As to the main issues of fact, it is sufficient to say that the evidence was conflicting, and that a verdict either way would not be disturbed. But it is said that Mrs. Longley testified “ that she was acting in the capacity of surviving wife of her dead husband;” and it is argued that this testimony, in the absence of other evidence, establishes conclusively that she had properly qualified under the statute as surviving wife, was competent as such to control the interest of the minors in the community estate, and that the statute of limitations having been plead, and the time being clearly sufficient, the entire claim was barred. We cannot regard Mrs. Longley’s evidence as meaning more than that she was the wife of -Longley, deceased. Whether she had properly qualified to enable her to control the community estate was a question of law, and not a fact to which any witness could testify. If the facts requisite to give her that authority existed, they certainly could easily have been established.

The jury found only in favor of the minors, and the judgment follows the verdict.

■ We see no error in the judgment, and it is accordingly affirmed.

Affirmed.