Cox v. Kee

• Decision Date: 16 February 1922
• Docket Number: 21963
• Citation: 186 N.W. 974,107 Neb. 587
• Parties: J. L. COX, APPELLANT, v. H. P. KEE, APPELLEE
• Court: Nebraska Supreme Court

186 N.W. 974

107 Neb. 587

J. L. COX, APPELLANT, v. H. P. KEE, APPELLEE

No. 21963

Supreme Court of Nebraska

February 16, 1922

APPEAL from the district court for Antelope county: WILLIAM V ALLEN, JUDGE. Affirmed.

AFFIRMED.

O. J Frost, Williams & Kryger, Lincoln Frost and J. W. Kensinger for appellant.

Jackson & Rice and Fred H. Free, contra.

Heard before MORRISSEY, C. J., ROSE and ALDRICH, JJ., HOBART and PAINE, District Judges.

OPINION

MORRISSEY, C. J.

February 28, 1916, defendant executed his promissory note for the sum of $ 3,786.80 payable March 1, 1917, with interest, payable to J. L. Cox and W. H. Cox. April 18, 1918, W. H. Cox died testate. Plaintiff's petition alleges the loss of the note after the same became due. Defendant's answer admits the execution and delivery of the note, but alleges that he paid the same on or about May 10, 1917, to W. H. Cox, one of the payees. The question of payment was thereby presented for the determination of the jury. From a verdict and judgment in favor of defendant, plaintiff appeals.

It is alleged that the verdict is not sustained by sufficient evidence. Under the circumstances the burden of proof was upon defendant. He testified in his own behalf and detailed the circumstances surrounding the alleged payments, and his testimony is corroborated in the main by disinterested witnesses. The weight to be given to the testimony of these witnesses was for the jury and we cannot disturb the verdict for lack of evidence to support it.

There is the further assignment that the court erred in refusing to permit one of plaintiff's counsel to testify generally as a witness in rebuttal unless he withdraw from the case as counsel. After defendant had rested, the attorney, who up to that period had actively conducted the trial for plaintiff, offered himself as a witness, whereupon the court stated that the attorney might testify generally as a witness, but, if so, he "must withdraw from the case as counsel, the plaintiff being represented by Mr. Williams of the firm of Williams & Kryger." Plaintiff excepted to the ruling, and to the language of the court. The court then stated that he had no "desire to influence the jury in the slightest degree on the evidence, but this practice of lawyers swearing generally in cases is unprofessional and must stop in this court." Plaintiff excepted to this statement by the court.

The attorney appears to have been unwilling to accept the alternative offered by the court and without making any offer of testimony continued to conduct the trial. It is argued by appellant that there is no statute disqualifying an attorney as a witness; that no rule of law prohibits the attorney of a litigant from testifying; and that there are often cases in which it may be quite important, if not indispensable, that such testimony be admitted. In support of this contention appellant cites In re Estate of Normand, 88 Neb 767, 130 N.W. 571, wherein it is said: "It sometimes happens that matters important to the litigation are peculiarly within the knowledge of the attorney conducting the litigation. When there is danger of a failure of justice for want of such evidence, the attorney is justifiable in becoming a witness. Such practice has been not uncommon in the trial courts of this state." We question whether the citation given fully sustains the point sought to be made by appellant. A careful study of the language used in In re Estate of Normand, supra, shows that the court meant to sanction the practice of attorneys testifying for their clients only when matters important to the litigation were peculiarly within the knowledge of the attorney and when without such evidence there was danger of a failure of justice. In that opinion it is also pointed out that the material part of the...