Harris v. Harris

• Decision Date: 31 October 1857
• Citation: 25 Mo. 567
• Parties: HARRIS et al., Appellants, v. HARRIS et al., Respondents.
• Court: Missouri Supreme Court

25 Mo. 567

HARRIS et al., Appellants,

v.HARRIS et al., Respondents.

Supreme Court of Missouri.

October Term, 1857.

1. To entitle a party to a suit, under the eleventh section, of the twenty-fourth article, of the Practice Act of 1849, or the third section of the act concerning witnesses (R. C. 1855, p. 1577), to examine as a witness in his behalf a party to the suit, the party summoned must be an adverse party, and not merely an opposing party on the record.

Appeal from Pike Circuit Court.

Broadhead, for appellants.

I. The court erred in excluding the testimony of Mrs. Whitlock.

Henderson, for respondents.

RICHARDSON, Judge, delivered the opinion of the court.

This was a proceeding, under the 31st section of the act concerning wills (R. C. 1845, p. 1083), to contest the validity of the will of Lewis Harris. The petition was filed by three of the heirs-at-law--two of whom were the administrators of the estate--against the widow, the other heirs-at-law, and the legatees under the will. On the trial the plaintiffs offered to read in evidence the deposition of Mrs. Whitlock, one of the defendants, who was one of the children of the testator, and also one of the legatees of the will; but it appeared that she would receive a larger interest in the estate as heir-at-law, if the will were set aside, than she would take under the will as legatee, and on the objection of her codefendants the deposition was excluded. The propriety of this decision presents the only question to be considered. The petition is silent as to the reason she was made a defendant.

At common law the witness would be incompetent for two reasons: first, because she was a party to the record, and next, for the reason that she was interested in the suit on the side of the party calling her; but it is insisted that the rules of the common law do not affect the question, and that it is to be determined by our statute law. The only provisions of the statute, that bear on the question, are contained in the act concerning witnesses (R. C. 1855), and are as follows: “Sec. 1. No person offered as a witness shall be excluded by reason of his interest in the event of the action. Sec. 3. Any party to a civil action or proceeding may compel any adverse party or person, for whose benefit such action or proceeding is instituted, prosecuted or defended, to testify at the trial, or by deposition as a witness, etc. Sec. 6. The following persons shall be incompetent to testify: first, a party to the action, or any person for whose immediate benefit the action is prosecuted or defended, except as hereinbefore provided in this act,” etc.

By the first section, interest alone does not disqualify a witness; but that section does not apply to a party to the action; for the sixth section renders him incompetent to testify for himself, or to testify at all, unless he is included in the exception referred to in the sixth section; and though that exception evidently has reference to the third section, yet, when a party attempts to avail himself of the third section, the person called as a witness must be an adverse party and not simply an opposing party on the record.

Under the Code, as formerly in chancery, all persons interested in the subject of the action must be made parties; and their relative position as pl...