Martin v. Jones
| Decision Date | 30 April 1880 |
| Citation | 72 Mo. 23 |
| Parties | MARTIN v. JONES, et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Carroll Circuit Court--HON. E. J. BROADDUS. Judge.
AFFIRMED.
Hale & Eads for appellants.
L. H. Waters for respondent.
The pleadings in this case and the principal facts in controversy are stated in the opinion of this court in 59 Mo. 181. The only point upon which the judgment for plaintiff was then reversed does not arise in the present case.
The points now relied on are, first, that the original injunction issued under the orders of the probate court of Carroll county, a court conceded to have the power to issue injunctions, was void for the reason that the clerk of the circuit court was ordered to issue the writ. This objection is obviously of no force, since the proceedings from which the appeal is taken, occurred in the circuit court and the initiatory steps are unimportant.
The second objection urged is, that a part of defendant's answer was stricken out, as immaterial. The bill of exceptions in the case does not show any objections to this action of the court, or any exceptions taken to it, nor does the record proper show what part of the answer was stricken out, as it is only described as that part included in brackets, and the record before us contains no brackets in the copy of the answer. Pearce v. McIntyre, 29 Mo. 423.
2. HEIRS OF PARTY TO DEED AS WITNESS, OTHER PARTY BEING DEAD.
The next point suggested by the appellants is, that Mrs. Glover and her brothers, children of Williams, the grantor in the alleged deed from McCarty, and, since the death of their father, plaintiffs in the action, were incompetent witnesses to prove the execution of the deed, and, therefore, the objection to their admission on the trial should have been sustained. The objection is based upon that provision of our statute which renders incompetent one of the original parties to the contract or cause of action, where the other party to such contract or cause of action is dead. In this case the witnesses objected to were not parties to the contract or deed, and were unquestionably competent to prove the execution of the deed, which was the ground-work of the action, at the first trial, when McCarty was living. Has the death of McCarty since rendered them incompetent? We think not, because they were not parties to the contract, and do not, therefore, come within the letter or reason of the statute. McCarty and Williams were the original parties to the contract; both are since dead. The children of Williams are not disqualified from testifying because of the death of their father, or McCarty, or both. The statute was designed to exclude the testimony of one party to a contract when the mouth of the other was closed by death. Here both the original parties to the contract are dead, and the witnesses offered are not disqualified because by the death of their father they have become parties to the action. They occupy the same position as any other plaintiff would, and the statute concerning parties to the contract or cause of action has really no application to the case.
The testimony of Mrs. Glover and young Williams was really unimportant, except in corroboration of what was clearly proved by the notary, Whiteman. He proved that Williams brought the deed...
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