Lahey v. Heenan

Judgment was entered in the Supreme Court,

Per Curiam.

— This is a confused case, rendering it difficult to say whether error was committed or not. The objection to the competency of Thomas Heenan was general. He was clearly competent under the Acts of March 27th 1865, and April 9th 1870, to testify as to matters occurring after the death of Dennis Heenan. No special objection was made to any of the subjects of his testimony. On the other hand, Lahey, the defendant, was incompetent to testify against the administrators as to matters occurring in the lifetime of Dennis Heenan. He fell, in this respect, directly within the exception to the Act of 1869, as to actions against executors or administrators. Now, so far as we can discover, in this confused bill of exceptions, it seems to have been the effort of the court below to maintain these boundaries in the testimony admitted and rejected. These remarks dispose of most of the assignments of error. A part of the testimony of Thomas Heenan might seem, in the plaintiff’s examination, to refer to matters occurring in Dennis Heenan’s lifetime, but the testimony of the defendant and his wife, when compared with it, shows that the conversation spoken of by Thomas Heenan occurred after Dennis’s death, and that he was testifying to these matters, not as facts known to himself anterior to Dennis’s death, but as referred to in these conversations. A number of the statements must be so understood, though seemingly stated generally. It is the business of a plaintiff in error to make the error clearly appear, before he can ask for a reversal. The presumptions are in favor of the proceedings in the court below. Keeping in mind the evident effort of the court as evidenced by the whole tenor of the bill to maintain the boundaries of testimony before referred to, it is manifest that the 3d, 5th, 6th, 7th, 10th, 11th, 12th and 13th assignments, on their face relate to matters occurring in the lifetime of Dennis Heenan, and were not competent to be proved by defendant. Though not so apparent, the 4th and 8th stand in fact in the same condition. Thus, the question to Lahey, whether he owed anything on the property at the death of Dennis, necessarily involved matters occurring in his lifetime, for the instant of death was the point of time referred to. The 9th assignment, so much relied on, is groundless. The defendant had testified in chief in his own behalf, and Mr. O’Byrne’s question was on cross-examination and related to the same subject, which must be understood to refer to matters stated in conversation subsequent to Dennis’s death. It could not be made a ground of opening the door to a general examination upon matters prior to his death. On the whole we discover no real error in this record.

Judgment affirmed.