Johnson v. Moilanen

• Decision Date: 16 November 1921
• Docket Number: Civil 1888
• Citation: 23 Ariz. 86,201 P. 634
• Parties: ALMA JOHNSON, Appellant, v. ABEL MOILANEN, as Administrator of the Estate of JOHN MOILANEN, Deceased, Appellee
• Court: Arizona Supreme Court

201 P. 634

23 Ariz. 86

ALMA JOHNSON, Appellant, v. ABEL MOILANEN, as Administrator of the Estate of JOHN MOILANEN, Deceased, Appellee

Civil No. 1888

Supreme Court of Arizona

November 16, 1921

APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge. Affirmed.

Mr John M. Feier, for Appellant.

Messrs McCann & Watson, for Appellee.

OPINION

McALISTER, J.

Alma Johnson filed suit in the superior court of Gila county against the administrator of the estate of John Moilanen, who died January 25, 1919, in which she alleges that she loaned and advanced to the deceased upon his oral promise to repay $800 as follows: $500 on March 5, 1917, $250 on May 18, 1917 and $50 on November 30, 1917. That no part of said loan has been paid, and that a verified claim for the amount was filed in proper time with the administrator and by him disallowed. From a judgment for the defendant and an order denying plaintiff's motion for a new trial, she appeals.

Several errors are assigned, but they each raise in a different way the only question presented by the appeal, which is the correctness of the trial court's ruling in not permitting the plaintiff to testify to the facts alleged in her complaint. The transaction out of which the cause of action arose occurred, according to the allegation, previous to the death of John Moilanen, one of the parties to it, and when appellant was questioned by her counsel concerning it an objection to her testifying was interposed by appellee, based on the provisions of paragraph 1678, Revised Statutes of 1913, which reads as follows:

"In an action by or against executors, administrators or guardians, in which judgment may be rendered, for or against them as such, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, interstate or ward unless called to testify thereto by the opposite party or required to testify thereto by the court; and the provisions of this section shall extend to and include all actions by or against the heirs, devisees and legatees or legal representatives of a decedent arising out of any transaction with such decedent."

At the suggestion of the court that other witnesses to the transaction, if there were any, testify first in order that it might determine whether it could exercise its discretion relieving appellant from the bar of this statute, the depositions of Annie Murto of Bruce Crossing, Michigan, and of H. Woullet of Detroit, Michigan, were read in evidence. It appears from the testimony of the former, who lived in Miami from the latter part of June, 1917, to November 28, 1917, and saw appellant and John Moilanen almost daily during this time -- the three living at the same rooming-house -- that Alma Johnson loaned John Moilanen $500 on March 5, 1917, $250 on May 18, 1917, and $50 on November 30, 1917; that Alma Johnson and John Moilanen both told her of these loans. In his deposition H. Woullet, who lived in Miami in 1916, 1917, 1918, and part of 1919, testified that he was acquainted with both Alma Johnson and John Moilanen and had known the latter since 1915; that John Moilanen told him in their room at Miami that Alma Johnson loaned him (Moilanen) $500 on March 5, 1917, and showed him (Woullet) a check for this amount, saying as he did so that it was given him by Alma Johnson and he was going to buy lots in Superior with it. In response to the court's query as to whether they had the check, appellant's counsel stated that they knew nothing of any check. It appeared from the deposition of Richard T. Lobb of Superior, Arizona, that John Moilanen purchased from him two lots and a house in the town of Superior, and paid therefor $500 on March 5, 1917, $250 on May 18, 1917, $250 on September 1, 1917, and $250 on November 1, 1917, a total of $1,250 and that he took the deed to the same in his name.

Appellant contends that these depositions "alone support every material allegation alleged in the complaint, regardless of the plaintiff's testimony," and that it was therefore an abuse of discretion not to permit appellant to testify following their introduction. It is not questioned however, that under the clause in paragraph 1678, above, reading, "or required to testify thereto by the court," it was within the discretion of the trial court to refuse her permission to testify in the first instance, but the contention is that the court could not arbitrarily deny her this right after the terms of the transaction upon which her cause of action is based was proven by the testimony of other witnesses. In substantiation of this position, she cites Goldman v. Sotelo, 7 Ariz. 25, 60 P. 696, in which this court, in commenting on the ruling of the trial court permitting the plaintiff to testify, said that the same facts had been testified to by two other witnesses and consequently there was no abuse of discretion in admitting the testimony of the plaintiff. From this it would appear that the facts to which the two witnesses and the plaintiff Sotelo testified were the same, and not that the plaintiff testified to the transaction itself and the two witnesses to an admission of it by the deceased, Wormser. In refusing appellant permission to testify in this case, however, it was observed by the trial court that the witness Annie Murto arrived in Miami some time after it was alleged the first two loans were made; that she left there on November 28th, two days previous to the alleged making of the last one, which rendered it impossible for her to have had personal knowledge about it; and that all she knew of the first two was what the...