Barton v. Scramling

Learned, P. J.:

Tbe plaintiff was sheriff; Earnham bis deputy. Tbe plaintiff through Earnham received an execution against one Buckley, which be, through Earnham, enforced against personal property of Mrs. Buckley. For this Mrs. Buckley sued and recovered against plaintiff. The plaintiff’s action seeks to recover against the executors of one Burnside now deceased, the attorney in that execution, upon a parol agreement made by Burnside with Earnham to indemnify him against loss by reason of levying on that personal property.

Farnham is called as a witness; and the objection is taken that he is incompetent under section 829 of the Code of Civil Procedure. He is not a party to this present action. Is he “ interested in the event ? ”

Earnham is called to show that the deceased Burnside indemnified the sheriff against certain wrongful acts which Earnham committed. If the defendant is liable it is because the acts were wrongful; if wrongful, Farnham is liable to the plaintiff and is directly interested in having the plaintiff recover against the indemnitor.

True the judgment recovered against the plaintiff may not be evidence against Farnham if he were not notified to defend. But the fact of his liability to the sheriff could be proved by other means than that judgment.

If this evidence is inadmissible, I do not think the case can be allowed to stand on the other proof.

Judgment reversed, new trial granted, referee discharged, costs to abide event.

Boardman, J., concurred.