Burdick v. Raymond

• Decision Date: 20 January 1899
• Citation: 107 Iowa 228,77 N.W. 833
• Court: Iowa Supreme Court
• Parties: BURDICK v. RAYMOND ET AL.

107 Iowa 228

77 N.W. 833

BURDICK

v.RAYMOND ET AL.

Supreme Court of Iowa.

Jan. 20, 1899.

Appeal from district court, Buena Vista county; Lot Thomas, Judge.

The plaintiff alleged in his petition that during the lifetime of Ambros Burdick, his father, he entered into an agreement, partly oral and partly in writing, by the terms of which his father was to convey to him certain real estate described, and, in consideration thereof, this plaintiff promised to move thereon and care for his father and mother the remainder of their lives; that in pursuance of said agreement the father purchased the property, and plaintiff moved thereon, and, on his part, fulfilled all the requirements of said contract; that Ambros Burdick failed to execute said deed, and the defendants, H. F. Schultz, the administrator of his estate, and the other heirs have neglected to do so. The defendants put in issue the making of the agreement, and aver that if made it was by way of an advancement. Decree was entered directing the administrator to convey the premises to plaintiff, and quieting title in him against the heirs. Defendants appeal. Affirmed.F. F. Faville and H. F. Schultz, for appellants.

A. D. Bailie, for appellee.

LADD, J.

Various objections were interposed to the testimony given by the plaintiff and his wife, as that it was incompetent, irrelevant, immaterial, hearsay, and not the best evidence. None of these were well taken. Section 4604 of the Code prohibits the giving of testimony of certain persons in regard to personal transactions or communications between such witnesses and a person at the commencement of the action deceased, insane, or lunatic. In other words, the witnesses are made incompetent to testify of such transactions or communications. The objection of incompetency, without more, goes to the evidence and not to the witness. White v. Smith, 54 Iowa, 233, 6 N. W. 284;Ball v. Railway Co., 74 Iowa, 132, 37 N. W. 110;State v. Hughes (Iowa) 76 N. W. 520. True, we have held that the question of the competency of a witness to testify may be questioned for the first time when a deposition is being read in evidence. Burton v. Baldwin, 61 Iowa, 283, 16 N. W. 110;Winters v. Winters, 102 Iowa, 55, 71 N. W. 184. The statute construed in these cases provided that “no exceptions to depositions other than for incompetency or irrelevancy shall be regarded unless made by motion.” Code 1873, § 3751. This language authorizes the objection to the evidence, either because of the incompetency of the witness to testify or of the testimony given, but does not relieve the party interposing it from indicating to which he excepts. This conclusion is not in harmony with what was said in Burton v. Baldwin, supra, but does not involve overruling that decision. The first point there made seems to have been that, as the widow, though a necessary party, had no interest in the litigation as between the other defendants and the plaintiff, she might testify to personal communications from the deceased; and it was held that she, being a party, was prohibited from testifying, whether so interested or not. It was next urged that...