Nesbitt v. Swallow

• Decision Date: 07 May 1917
• Docket Number: 8663.
• Citation: 164 P. 1163,63 Colo. 194
• Parties: NESBITT et al. v. SWALLOW.
• Court: Colorado Supreme Court

164 P. 1163

63 Colo. 194

NESBITT et al. v. SWALLOW.

No. 8663.

Supreme Court of Colorado

May 7, 1917

Error to District Court, Denver County; William D. Wright, Judge.

Suit by George R. Swallow against Frank B. Nesbitt, administrator of the estate of Jonathan Nesbitt, deceased, and others. To review a decree of foreclosure, defendant administrator brings error. Affirmed.

John F Rotruck, of Denver, for plaintiff in error.

John Hipp, of Denver, for defendant in error.

TELLER J.

The defendant in error brought suit to foreclose a mortgage made by one Holloway to secure a promissory note, who later sold and conveyed the mortgaged premises to one Beatty, and took from Beatty a promissory note secured by a deed of trust on said premises. The note secured by this deed of trust was transferred to Jonathan A. Nesbitt. He having died, Frank B. Nesbitt, the plaintiff in error, became administrator of the Nesbitt estate.

Holloway Beatty, and Nesbitt, as administrator, were all made defendants, though the only relief prayed for as against Nesbitt and Beatty was that they be foreclosed of all rights etc., in the premises.

Plaintiff in error by his answer claimed that the lien of the deed of trust was prior to that sought to be enforced by the plaintiff in the case. The court found against him on that point, the a decree of foreclosure in the usual form was entered.

The only question discussed in the briefs is as to the competency of the plaintiff to testify on his own motion, as he was permitted to do, over the objection of defendant Nesbitt.

It is urged that, under section 7267, R. S. 1908, he was incompetent to testify because Nesbitt was defending as administrator.

Counsel cite several decisions of this court, in some of which general statements are made from which counsel conclude that in no case can a plaintiff testify on his own motion where one is defending as an heir, devisee, executor, or administrator. Those cases, however, must not be accepted as stating the law except as applied to the facts of the cases.

The question here presented has never been before us for determination, though the principle here involved was touched upon in Cree v. Becker, 49 Colo. 268, 112 P. 783. There an action was brought against two sureties on a bond, one of whom died before the trial. The administrator of his estate was substituted, and the other defendant was, during the trial, dismissed out of the case. The trial court sustained an objection to the competency of the plaintiff as a witness and this we held no error. But in the court's opinion, by Mr. Justice Bailey, it was said that, if the other surety were in the case as a defendant, it might well be that the plaintiff would be a competent witness, at least against him, and possibly for all...