McKinley v. Williamson

• Decision Date: 31 March 1856
• Citation: 23 Mo. 65
• Parties: MCKINLEY, Appellant, v. WILLIAMSON, Respondent.
• Court: Missouri Supreme Court

23 Mo. 65

MCKINLEY, Appellant,

v.WILLIAMSON, Respondent.

Supreme Court of Missouri.

March Term, 1856.

1. The assignee of a thing in action, assigned for the purpose of making him a witness, should not be excluded as a witness, under section 2 of article 25 of the practice act of 1849, (sess. acts, 1849, p. 190,) where, after such assignment, the assignor is entirely divested of interest in the event of the suit.

Appeal from St. Louis Law Commissioner's Court.

The only question arising in this case grows out of the ruling of the court below in excluding a witness offered on the part of the plaintiff.

Plaintiff, McKinley, on the trial, offered as a witness one Margaret Johnston, who being objected to on the ground that she was the assignor of the demand sued on, and that she had assigned said demand for the purpose of being a witness in the cause, stated on her voir dire“that she sold and assigned the claim to the plaintiff in this cause; plaintiff gave me twenty dollars for the claim. I never made any arrangement with the plaintiff about it. I went by the direction of plaintiff's attorney. I have never refunded the money to the plaintiff, and there is no understanding between us about it. In case he wins it, I do not expect to have any of the money, and in case he loses, I don't expect to pay any thing. I went to consult with the attorney of plaintiff as to how I could get my money, before I sold to plaintiff. I afterwards went to the office of said attorney in company with the plaintiff, at which time the assignment was made and the money paid; there was nothing said about my being a witness until subsequent to the assignment.”

The court excluded the witness; whereupon the plaintiff submitted to a nonsuit, with leave to move to set the same aside; which motion having been made and overruled, the case is brought here by appeal.

Bland & Coleman, for appellant, cited Hamilton & Dansville Plank R. Co. v. Rice, 7 Barb. 157, 161-2; Evarts v. Palmer, Id., 178, 181-2; Montgomery Co. Bank v. Marsh, 3 Selden, 481; 11 Barb. 545-9; Hall v. Robinson, 2 Comst. 293; Brig Sarah Ann, 2 Sumn. 206.

Hart & Jecko, for respondent.

SCOTT, Judge, delivered the opinion of the court.

The point made in this cause is, whether an assignor of a chose in action can be a witness for his assignee in a suit by the assignee, under the 25th article of the present practice act. The first section of the article referred to enacts “that no person offered as a witness shall be excluded by reason of his...