Gladman v. Carns

• Decision Date: 20 January 1964
• Citation: 9 Ohio App.2d 135,223 N.E.2d 378
• Parties: , 38 O.O.2d 149 GLADMAN, Appellee, v. CARNS, Exrx., Appellant.
• Court: Ohio Court of Appeals

Page 135

9 Ohio App.2d 135

223 N.E.2d 378, 38 O.O.2d 149

GLADMAN, Appellee, v. CARNS, Exrx., Appellant.

Court of Appeals of Ohio, Second District, Miami County.

Jan. 20, 1964.

Faust & Harrelson, Troy, for appellee.

J. Cameron Dungan, Troy, for appellant.

KERNS, Presiding Judge.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Miami County, Ohio.

The defendant, Helen M. Carns, appellant herein, was appointed executrix of the estate of Blanche M. Haines on July 19, 1960.

On July 20, 1960, a claim against the estate was presented to the executrix on behalf of the plaintiff, Amos Gladman, appellee herein.

The claim was neither allowed nor rejected by the defendant. For this reason, the plaintiff, on March 13, 1961, made demand upon the executrix by mail to allow the claim within five days or he would consider the claim rejected and proceed to file a petition for the amount of the claim in the Court of Common Pleas. The claim was not allowed within the five days, and the present action was commenced.

In his petition, the plaintiff says 'that on or about the 1st day of October 1955, the decedent, Blanche M. Haines, was the owner of a farm upon which this plaintiff was at said time a tenant. That on or about said date, said decedent entered into a contract agreeing that if said plaintiff would install a bathroom in the house upon said farm and pay for the same, that she would reimburse said plaintiff if he vacated said farm prior to her death, and if he was still living on said farm at the time of her death, plaintiff was to be reimbursed from her estate.'

'Plaintiff says that pursuant to said contract and relying upon decedent's agreement, he did install said bathroom at a cost of $996.62 and that said decedent on the 21st day of June, 1960, died and this plaintiff vacated said farm on the 14th day of march, 1961, and that said amount is now due and payable.'

The defendant's answer, in addition to generally denying the allegations of the petition, specifically denies that plaintiff presented a claim to her on July 20, 1960, and says that the statute of limitations for the presentation of said claim has run.

Thereafter, on October 25, 1962, a jury was waived and evidence was presented to the Common Pleas Court.

On January 5, 1963, judgment was entered in favor of the plaintiff, and this appeal is from such judgment.

The first of three errors assigned by the defendant is that 'the trial court erred in admitting as evidence the testimony of Elizabeth Gladman * * *.' Elizabeth Gladman is the wife of the plaintiff, but she was not a party to the action.

Section 2317.03, Revised Code, provides in part that '(a) party shall not testify when the adverse party is * * * an executor * * *.'

Ordinarily, the term 'parties' is used to designate the opposing litigants in a judicial proceeding. 41 Ohio Jurisprudence 2d 446, Section 2.

The plaintiff's wife was not a party to the proceeding in the trial court. Nor did she have any direct interest in the outcome of the litigation. Under such circumstances, the Supreme Court, in construing language similar to that presently contained in Section 2317.03, Revised Code, has held that the spouse of a real party in interest is not thereby disqualified as a witness. Wolf v. Powner, Exr., 30 Ohio St. 472. See, also, Loney v. Walkey, Admr., 102 Ohio St. 18, 130 N.E. 158. The word 'party' as used in the pertinent statute was also given a restricted meaning in the case of Schulte, Exr. v. Hagemeyer, 16 Ohio App. 1.

In the case of Powell, Admx. v. Powell, Admx., 78 Ohio St. 331, at page 337, 85 N.E. 541 at page 543, the Supreme Court asked and then answered the same question which is now before us, as follows:

'Who is the party mentioned in Section 5242 (Section 2317.03, Revised Code)? It is not a generic term to cover the litigants and also their witnesses, for the section and its immediate companions speak of witnesses and parties in a different sense. A party may also be a witness, within the restraints of the statute, but a witness is not a party to the action. The party referred to is a party to the action, and not one who may be interested in the results of the litigation; a party to the suit and so known on the record. He it is who 'shall not testify where the adverse party is the guardian or trustee of either a deaf and dumb or an insane person * * * or is an executor or administrator * * *."

Applying this language to the present case, the plaintiff's wife was not incompetent to testify in the proceeding. The trial court properly concluded that her indirect interest was only significant in determining credibility. Accordingly, the first assignment of error...