Hess v. Hartwig

• Decision Date: 10 December 1910
• Docket Number: 16,756
• Citation: 112 P. 99,83 Kan. 592
• Parties: C. A. HESS, as Administrator, etc., Appellee, v. WILLIAM HARTWIG, Appellant
• Court: Kansas Supreme Court

112 P. 99

83 Kan. 592

C. A. HESS, as Administrator, etc., Appellee, v. WILLIAM HARTWIG, Appellant

No. 16,756

Supreme Court of Kansas

December 10, 1910

Decided July, 1910.

Appeal from Allen district court.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE -- Transactions with Persons Since Deceased -- "Party." No one is disqualified as a witness by reason of his interest in the result of a litigation, and the term "party," as used in section 320 of the code of 1909, which prohibits a party from testifying concerning personal transactions and communications with a person since deceased, does not mean or include one not technically a party to the action, however much he may be interested in the result of the action.

2. GIFT--Delivery--Redelivery to Donor as Custodian or Trustee. While a complete and unconditional delivery is essential to the validity of a gift, a constructive or symbolic delivery will meet the requirements of the law; and where there is a delivery the fact that the property may be redelivered to the donor as agent or trustee of the donee, or for safe-keeping, will not nullify or affect the gift.

3. GIFT--Question of Fact. Testimony relating to a gift held to be sufficient to require the submission of the question to the jury.

G. H Lamb, and W. E. Hogueland, for the appellant.

G. A. Amos, L. V. Orton, H. A. Ewing, S. A. Gard, and G. R. Gard, for the appellee.

OPINION

JOHNSTON, C. J.:

The ownership of certain notes and mortgages is the subject of dispute between the parties. On a former appeal many of the facts out of which the controversy arose were stated. ( Hartwig v. Flynn, 79 Kan. 595, 100 P. 642.) In the final trial to determine the title of the notes and securities, wherein the administrator prevailed, there was contention as to the admissibility of the testimony of William and Frederick Hartwig, much of which was excluded; and upon the conclusion of the testimony for appellant the court sustained a demurrer to his evidence, on the ground that it did not prove a defense to the action of appellee. On the exclusion of testimony and the sustaining of the demurrer to the evidence of appellant errors are assigned.

The question tried out was whether Gotlieb Hartwig had in his lifetime given the notes and mortgages, or moneys represented by them, to his sons, William and Frederick. As the action of the administrator was brought against William Hartwig, he was incompetent to testify to any transactions or communications had with his father in respect to the notes and mortgages acquired from the father. (Code 1909, § 320.) A number of rulings excluding testimony, of which complaint is made, were clearly correct, because it came within the statutory limitation. In some cases the testimony excluded, although not communications or transactions between William and his father, and therefore not within the limitation, appears to be immaterial. William was asked to tell why the notes taken in his name were allowed to remain in his father's box until after the latter's death, but he was not permitted to answer. As the inquiry admitted of an answer that would be neither a communication nor a transaction with his father, the objection should not have been sustained. Frederick Hartwig was also asked why the notes in which he and William were named as payees remained in his father's box, and in the same connection he was asked to state whether the three notes were in his father's box for safe-keeping. These questions were excluded, and in support of the ruling it is argued that as Frederick was interested in the result of the litigation because one of the notes was claimed by him he was incompetent to testify to any communications with his father in relation to these notes. The fact that a person other than the parties may have an interest in the result of the action does not disqualify him as a witness. The code specifically provides that no one shall be disqualified by reason of his interest in the result of the litigation. (Code 1909, § 317.) The prohibition in section 320 of the code of 1909 is not to be extended by implication, and it has been held to apply only to those who are technically parties to the action. The term "party," as used in the code, does not mean or include persons not parties in the technical sense, however much they may be interested in the result of the suit. (Mendenhall v. School District, 76 Kan. 173, 90 P. 773.) Frederick was therefore a competent witness in this action as to any communications or transactions with his father which bore upon the ownership of the notes.

The...