Lobdell's Adm'r v. Fowler
| Decision Date | 01 January 1870 |
| Citation | 33 Tex. 346 |
| Parties | LOBDELL'S ADMINISTRATOR v. N. B. FOWLER. |
| Court | Texas Supreme Court |
1. Depositions of the sons of the original defendant were taken on his behalf in a suit on his note. Afterward, but before trial of the cause, the original defendant died, and the sons, being heirs and distributees of his estate, thereby acquired in the result of the suit an interest which subsisted at the time of the trial of the cause, to which their father's administrator had become the party defendant. Held, that it was error to exclude the depositions on the ground of the interest of the witnesses at the time of the trial, they having been competent when their depositions were taken.
2. This court has repeatedly ruled, and now reiterates, that executory contracts, based on so-called Confederate money, will not be enforced; and that evidence aliunde is admissible to prove that such is the character of a written instrument, though not expressed upon its face.
APPEAL from Smith. Tried below before the Hon. Samuel L. Earle.
The suit was on a note for “seventeen hundred and fifty dollars,” dated November 24, 1863, and due one day after date. The maker of the note, and the original defendant in the action, was John L. Lobdell, but he died during the pendency of the suit, and R. Engledow, his administrator, was made defendant in his stead. Before this change in the party defendant, and while John L. Lobdell, the original defendant, was still in life, the depositions of his two sons were taken, to prove that the note was for Confederate money. But on the trial these depositions were excluded, on the objection of the plaintiff that the witnesses were disqualified by their interest in their father's estate, which would be diminished by a recovery by plaintiff.
The section of the statute referred to in the opinion of the court is as follows:
“Depositions taken and returned in the manner provided for by this act, and an act entitled ‘An act to regulate proceedings in the district courts,’ approved May 13, 1846, may be read as evidence upon the trial of any suit in which they are taken, subject to all legal exceptions which might be made to the interrogatories and answers, were the witness personally present before the court, giving evidence,” etc. Pas. Dig. art. 3733.
The verdict and judgment below were for the plaintiff. The defendant's motion for a new trial was overruled, and he appealed.
John L. Henry, for the appellant. The section of the statute just quoted, evidently refers to the status of the witness at the time his depositions were being taken.
If he was then disqualified from any cause, such legal exceptions as might have been urged, had the court and not the commissioner been taking his evidence, will be considered now for then.
This construction does no violence to the letter of the law, but to hold that the testimony of a witness, in every respect competent when he is sworn and testifies, must be excluded because he becomes interested afterwards, does gross violence to the spirit and reason of the law, and would be in conflict with the best authorities. 1 Greenl. § 186.
The reason of the law in excluding from testifying a witness interested in the result is: “The danger of perjury, and the little credit generally found to be due to such testimony in judicial investigations.” 1 Greenl. § 386.
The legislature in following and adopting the common law in making interest disqualify a witness, could have had in view no other or better reason than the one so long and universally recognized by the sages of the common law.
“When the reason of the law ceases, the law itself ceases.” When in danger of perjury, by reason of interest, this witness could not testify, but when his depositions were taken he did not incur this danger, because he had no interest. When the depositions are read, he does not of course incur it.
The law in determining as to the competency of a witness will look only to the time when he was sworn and testified. Ables v. Miller, 12 Tex. 110.
The law provides that the disqualification of a witness, by reason of interest, may be removed by the release of the interest.
When the depositions in this case were taken there was no interest existing to be released. Suppose a release to be made now, what effect could it have? Evidently none whatever--the witness having been already examined.
The release must in all cases be made before the witness...
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