Gaffney v. Mentele
| Decision Date | 24 February 1909 |
| Parties | GAFFNEY v. MENTELE. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Hanson County.
Action by Anna Gaffney against Louise M. Mentele, executrix of William H. A. Kroeger. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed.
P. A Zollman, for appellant.
E. E Wagner, for respondent.
This is an appeal from the judgment for plaintiff in the trial court and from the order denying a new trial. The cause was tried to a jury and was an action upon an open account for money loaned by plaintiff to one Wm. H. A. Kroeger, of whose estate the defendant was executrix. The complaint set forth that prior to 1890 plaintiff had loaned said Kroeger a large sum of money, that he had made payment from time to time, and that about December 1, 1890, an accounting was had upon which it was agreed that "$600 or thereabouts" remained due. Further payments were made from time to time, the last under date of October 1, 1902; these payments aggregating $25. Then followed allegations of death of Kroeger appointing executrix, notice to creditors, presenting claim, rejection thereof, etc., and demand was made for judgment for $575 and interest at 7 per cent. from December 1, 1890. Defendant, admitting death of Kroeger and her appointment as executrix, made a general denial of other allegations and pleaded statute of limitations. Upon the trial all allegations of complaint regarding notice to creditors, presenting claim, rejection thereof, etc., were admitted, leaving only the question of whether an indebtedness ever existed against deceased in favor of plaintiff, and the statute of limitations.
Plaintiff was a witness in her own behalf, and, after testifying to being acquainted with the deceased at Elkhart, Ind., back about 1879, she was asked: "While he was there, did you have any business transaction with him?" Defendant objected on the ground that question was incompetent, calling for a transaction with or statement by the deceased; the witness being a party to the action. The objection was overruled, exception taken, and witness answered, "Yes." No evidence as to nature of transaction was sought from this witness. This ruling is assigned as error. Without determining whether the court's ruling was correct, we do not think it amounted in any case to reversible error for reasons hereinafter stated.
The second matter urged as error was the ruling of the court refusing to strike out the evidence of witness T. H. Gaffney who, on behalf of his mother, the plaintiff, had testified that deceased had made a payment to his mother of $25 at about March, 1902, and had asked to be given credit for that amount, and that she did give such credit. On cross-examination this witness testified that he did not see the money paid, and then defendant asked that the evidence above mentioned on direct examination be stricken out, which motion was denied and exception taken. An examination of the abstract shows that the answer on direct examination was given in response to the question, "You may state what was said at that conversation"; this question relating to a conversation he claimed to have had with Kroeger in presence of witness' wife in March, 1902. He went on to relate this conversation, part of which was in his mother's presence, and which conversation in part, as testified to by him, consisted in what deceased said in relation to the indebtedness sued on, as well as what his mother said. From the fact that the words complained of followed the question above, it is quite possible that his information was obtained by statements of deceased; but, in any event, it could hardly be reversible error, as witness afterwards testified to statements of deceased to the effect...
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