Brown v. Creekmore

• Decision Date: 19 January 1920
• Docket Number: 116
• Citation: 217 S.W. 774,141 Ark. 512
• Parties: BROWN v. CREEKMORE
• Court: Arkansas Supreme Court

217 S.W. 774

141 Ark. 512

BROWN v. CREEKMORE

No. 116

Supreme Court of Arkansas

January 19, 1920

Appeal from Crawford Circuit Court; James Cochran, Judge; reversed.

Judgment reversed.

W. A Falconer and Joe R. Brown, for appellant.

1. The court erred in permitting defendant to testify as to transactions between him and appellant's decedent. Kirby's Digest, § 3093; 48 Ark. 133; 46 Id 306; 50 Id. 157; 82 Id. 136; 123 Id. 266; 132 Id. 441. The clause applies also to special administrators, as the word "administrator" as used applies to all, whether general or special.

2. It was error to allow the defendant to set up a defense which was res judicata the matters which had been pleaded in the chancery decree and there decided. 20 Ark. 91. The special administrator is a privy to the deceased Vincenheller in representation. 22 Cyc. 388; 52 Ark. 411; 5 Id. 303 424; 119 Id. 413; 108 Id. 574; 41 Id. 75; 76 Id. 423.

A judgment of a court of competent jurisdiction operates as a bar to all defenses, legal or equitable, pleaded, or which could have been pleaded. 76 Ark. 423; 57 Id. 500; 23 Cyc. 1215. On res judicata, see also 135 Ark. 450;

Herman on Estoppel and Res Judicata (Ed. 1886), page 279, § 244.

E. L. Matlock, for appellee.

1. Appellee was competent to testify, as he was not prohibited by our statute. Kirby Digest, §§ 3093, 6029, 6300. These statutes do not preclude a party from testifying as to transactions with deceased where there is a special administrator. 35 Ark. 247; 38 Id. 631; 63 Id. 556; 87 Id. 242.

Appellee's claim was established by other competent evidence and Vincenheller's letters. 56 Ark. 385; 82 Id. 136.

2. The trial court did not err in permitting appellee to plead the decree in chancery. Appellee was a competent witness as to what was done by the court and not written in the decree or to explain any ambiguous recitals in said decree and to testify that the items claimed by him were not in fact put in issue or decided against him in said decree. 11 Ark. 666; Kirby's Digest, §§ 6090, 6104. This statute was upheld in 66 Ark. 529. As to res judicata, see 136 Ark. 115; 55 Id. 286; 94 U.S. 608; 62 Ark. 76; 66 Id. 336; 96 Id. 87; 116 Id. 501; 121 Id. 594.

The burden was on defendants to prove the former adjudication, and they failed. If appellee was incompetent, there was enough competent evidence to sustain the verdict and the judgment should be affirmed.

OPINION

MCCULLOCH, C. J.

Appellant 's intestate, G. A. Vincenheller, instituted this action against appellee before a justice of the peace in Crawford County to recover a balance of $ 100, alleged to be due and unpaid on a promissory note executed by appellee. Vincenheller died while the cause was pending in the circuit court on appeal, and there was a revivor in the name of appellant as special administrator.

The note sued on was executed by appellee to Vincenheller for the sum of $ 500, but, according to the testimony adduced in the cause, it had been paid down to a balance of $ 100, and appellee pleaded a counterclaim based on items aggregating the sum of $ 105, alleged to be owing to him by Vincenheller.

In the trial of the cause appellee was allowed, over appellant's objection, to testify concerning alleged transactions between him and Vincenheller which formed the basis of the items of appellee's counterclaim. This is assigned as error. Appellant also introduced in evidence a decree of the chancery court of Crawford County in a cause between the same parties which appellant claims constituted an adjudication adverse to appellee of the cause of action against Vincenheller set forth in the counterclaim. The court ruled against the plea of former adjudication and submitted the issue to the jury as to the merits of the counterclaim. The verdict was in appellee's favor for the full amount of the counterclaim, upon which the court rendered a judgment over in appellee's favor for the recovery of the sum of $ 5 against the estate of said decedent.

The ruling of the court in admitting the testimony of appellee concerning transactions with the decedent is defended on the ground that the statute excluding such testimony has no application to suits by or against special administrators. Constitution of 1874, Schedule, sec. 2; Kirby's Digest, sec. 3093.

The statute provides that "in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party." The operation of the statute is not restricted to regular administrators, but applies with equal force to a cause of action in which the estate of a decedent is represented by a special administrator. The fact that one of the parties appears in the action as the legal representative of an estate calls the statute into operation so as to exclude the testimony of either party concerning "any transaction with or statements of the testator."

The court erred, therefore, in admitting the testimony of appellee concerning his transactions with appellant's intestate.

We are also of the opinion that the court erred in failing to give effect to the prior adjudication of the chancery court concerning the cause of action set forth in appellee's counterclaim. Appellee and Vincenheller were parties to that suit, the latter being the plaintiff and the former being a defendant, and appellee filed a counterclaim setting forth the same items embraced in the counterclaim in the present action, except one item of $ 25, which will be referred to later. That portion of the decree which records the action of the court concerning the counterclaim reads as follows:

"On this 17th day of September, 1917, the same being one of the days of an adjourned term of the above entitled court, comes on for hearing the above entitled cause, comes the plaintiff, by his attorney, J. R. Brown, and defendant, Lynch Creekmore, by his attorney, E. L. Matlock, the other defendants failing to appear, and the cause is submitted upon the complaint and exhibit thereto, and the answer and counterclaim of the defendant, Lynch Creekmore, the replication of the plaintiff and the oral testimony adduced at the time. And, it appearing that the said defendants were duly served with process, and the defendant, Lynch Creekmore, having duly entered his appearance in this cause by filing an answer and counterclaim herein, which counterclaim was disallowed (the same comprising a claim of $ 50 against the plaintiff for services in collecting rents, $ 10 for building a fence, $ 10 for a pump put in for plaintiff and $ 10 for two small outhouses)."

The contention is that the chancery ...