Maganaw & Co. v. Bell

• Decision Date: 22 September 1882
• Citation: 13 N.W. 277,13 Neb. 247
• Parties: MAGANAW & CO. v. BELL.
• Court: Nebraska Supreme Court

13 Neb. 247

13 N.W. 277

MAGANAW & CO.

v.BELL.

Supreme Court of Nebraska.

Filed September 22, 1882.

Error from Dodge county.

George L. Loomis, for plaintiff.

N. H. Bell, for defendant.

BY THE COURT.

The defendants are executors of the last will and testament of John Riddle, deceased. The firm of Maganaw & Co., in April, 1880, consisted of Eugene Maganaw, Otto Maganaw, and Oswald Miller, who filed a claim against the estate of Riddle for the sum of $94.50, which claim was disallowed by the county court. In July, 1881, Eugene Maganaw sold his interest in the firm to Otto Maganaw, and at the present time he has no interest therein. On the trial of the cause in the district court Eugene Maganaw was offered as a witness to prove the claim, to which objection was made upon the ground that the adverse party was the executor of Riddle. The objection was sustained, and the witness excluded. This is now assigned for error. Section 324 of the Code provides that “no person having a direct legal interest in the result of any civil cause or proceeding shall be a competent witness therein, when the adverse party is an executor, administrator, or legal representative of a deceased person, unless the testimony of such deceased person shall have been taken during his life-time, and is to be read in evidence in such cause or proceeding.”

In the case of Davis v. Davis, 26 Cal. 37, the court say: “We are of the opinion that the word ‘representative,’ in the amendment of 1863, was intended by the legislature to designate the executor or administrator of a deceased person, and also the person or party who has succeeded to the rights of the deceased, whether by purchase or descent or operation of law.” Any other construction would leave the purchaser of an estate from a grantor who subsequently died, in a worse condition than the grantor's executor would be had no conveyance of the estate been made.”

In the case of Kimball v. Kimball, 16 Mich. it was held that the statute precluded a party from putting in evidence his account of a transaction known to both when the death of the opposite party prevents his being heard. See, also, Grand Gulf R. R. v. Ryan, 8 Smedes & M. 275;Kelton v. Hill, 59 Me. 259; Hollister v. Young, 41 Vt. 160;Wamsley v. Crook 3 Neb. 350. But it is said that a party may, by divesting himself of his interest in the event of a suit, render himself competent as a witness; that the disability arises alone from his interest in the result of...