Faden v. Midcap's Estate

• Court: Colorado Supreme Court
• Writing for the Court: HILLIARD, Justice. GOUDY, J., dissents. HILLIARD, Justice.
• Citation: Faden v. Midcap's Estate, 112 Colo. 573, 152 P.2d 682 (Colo. 1944)
• Decision Date: 25 September 1944
• Docket Number: 15516.
• Parties: FADEN v. MIDCAP'S ESTATE.

152 P.2d 682

112 Colo. 573

FADEN v. MIDCAP'S ESTATE.

No. 15516.

Supreme Court of Colorado, En Banc.

September 25, 1944

Rehearing Denied Oct. 30, 1944.

Error to District Court, Adams County; Osmer E. Smith, Judge.

Action by Charles Faden against the estate of James T. Midcap deceased, to recover on a claim against the estate for unpaid portion of decedent's proportionate part of an obligation on a note. To review an adverse judgment, claimant brings error.

Reversed and remanded with instructions.

GOUDY J., dissenting.

On Petitions for Rehearing.

Harry Behm, of Brighton, for plaintiff in error.

William Hedges Robinson, Jr., of Denver, for defendant in error.

HILLIARD Justice.

A claim against an estate for the unpaid portion of decedent's proportionate part of an obligation having genesis in a promissory note. The claim was disallowed in the county court, on the ground that it was barred by the statute of limitations, and dismissed in the district court, where it was taken by appeal, on the ground that it did not have sufficient evidentiary support.

The controlling point below, and on specification here, has to do with the competency of claimant to testify in support of his claim. In connection therewith, it was stipulated that at the trial in the county court, claimant, proceeding without objection, not only testified at length in chief on the merits of the claim, but in relation thereto had been subjected to searching cross-examination by counsel representing the estate. When claimant was sworn to testify at the trial in the district court, however, his lack of competency was emphasized and an adequate objection was interposed. After counsel for claimant had argued to the effect that what had occurred in the county court concluded the estate, that is to say, failure to object to claimant's competency as a witness at the trial there worked his immediate and continuing competency to testify in the matter, the statute, '35 C.S.A. c. 177, § 2, notwithstanding, and counsel for the estate had been heard contra, the court, noting the point, concluded to admit claimant's testimony subject to the objection, and reserved its ruling. At the conclusion of all evidence, the court held that claimant was not competent to testify, and that without his testimony, which was stricken or disregarded, the claim had not been 'proven.'

It appears from the testimony of claimant, and that of witnesses Marty and Heebner of the directorate of the company, and from book entries and other exhibits received in evidence, that in 1929, claimant (plaintiff in error), James T. Midcap, deceased (whose estate is defendant in error), William Heebner, J. A. Bengston, Albert Marty and H. V. Deakin, organized, and were the directors of, a corporation known as the Farmers Oil Company, of Henderson, which engaged in the business of supplying gas and oil to farmers of that community. In financing its enterprise, the company borrowed money from plaintiff in error, in evidence whereof it gave two notes, one dated November 18, 1929, in the sum of three thousand five hundred dollars, due sixty days thereafter, and which bore interest at seven per cent per annum, payable monthly, and one dated September 4, 1930, for three thousand dollars, due in twelve months, with interest at seven per cent per annum, payable quarterly. The first note was endorsed by all the directors, in the following order: Heebner, Deakin, Marty, Midcap, Bengston, Faden; and the second one by all except Faden, in order as follows: Heebner, Midcap, Marty, Bengston, Deakin. In 1934, the company's inability to realize on credits it had extended to its customers became so pronounced, that, other than efforts made to collect from its debtors and pay its creditors, it suspended business. Excepting only as to plaintiff in error, holder of the two notes, and which were endorsed by the directors of the company, as already stated, the company effected composition with its creditors. As to the notes, and between 1934 and 1937, the directors of the company, excluding Deakin, who, as was agreed, could not contribute thereto, and including plaintiff in error, made voluntary payments toward the discharge of the interest thereon. In March, 1937, although, seemingly, by statute, '35 C.S.A. c. 112, § 68, the endorsers were liable only in the order in which they had endorsed the notes, the five who had theretofore borne the burden of the interest thereon, mutually agreed that their responsibility as endorsers should be in fifths, that is to say, each would pay one-fifth of the balance due on the two notes, or $1241.69, such balance having been ascertained and agreed to be $6,208.44. All save Midcap, proceeding at divers times and in varying sums, paid in accordance with the agreement, and he paid in part. His last payment was made September 28, 1937, and was in the sum of $403.28. Considered in the light of all the testimony, claimant's included, the claim involved, filed against the estate October 17, 1941, clearly was established; also, the last two dates borne in mind, the statute of limitations, invoked by defendant in error, was not pertinent. In short, assuming claimant's competency to testify, preliminarily permitted, the claim should have been allowed in the district court.

The record considered, claimant, proceeding 'at his own instance,' was not competent to give evidence in support of his claim in the trial in the county court, and had objection been 'properly interposed in apt time,' his testimony must needs have been rejuected. Jones v Henshall, 3 Colo.App. 448, 34 P. 254, 255. The importance of an objection, aptly and sufficiently stated, is emphasized in many of our decisions, as witness Cree v. Becker, Adm'r, 49 Colo. 268, 112 P. 783; Brown, Adm'x, v. First Nat. Bank, 49 Colo. 393, 113 P. 483; Temple, Adm'r, v. Magruder, 36 Colo. 390, 85 P. 832. 'It is incumbent upon the party seeking to take advantage of the incompetency of a witness to interpose an objection on that ground, in the absence of which the objection is deemed waived and the witness is properly allowed to testify.' 70 C.J. p. 370, § 486. Failure of the party entitled to the protection of the statute 'to object to the testimony of the witness,' results in waiver. Id., p. 372, § 490. 'An administrator and his counsel, for example, may not be permitted to sit by without objecting to the admission of evidence competent in itself, and to expect that the trial judge will rule it out on his own motion. Failure of persons represented in the cause and having the power to object and knowledge of facts which render an objection tenable to make such objection in adequate form and at the first opportunity can only be construed as a waiver by such persons of the protection of the statute and as consent to all testimony, of the particular witness at least, which is not inadmissible upon other grounds. Objection to the competency of a witness must be made, if known, Before his examination in chief as to the matter on which he is alleged to be incompetent. When the question is put the objection should be made. While the statutes generally provide that no party or interested person shall be allowed to testify in the cases we are dicussing [actions involving claims against estates], most of them have been construed to mean, not that the witness shall not be sworn, for he might prove other and competent matter, but that it is proper to allow him to be sworn, and timely...