Norvell v. Cooper

• Decision Date: 21 February 1911
• Citation: 134 S.W. 1095,155 Mo. App. 445
• Parties: NORVELL v. COOPER.
• Court: Missouri Court of Appeals

134 S.W. 1095

155 Mo. A. 445

NORVELL v. COOPER.

St. Louis Court of Appeals. Missouri.

February 21, 1911.

Rehearing Denied March 7, 1911.

1. WITNESSES (§ 140) — COMPETENCY — DISQUALIFICATION — PECUNIARY INTEREST — TRANSACTIONS WITH DECEDENT.

Rev. St. 1909, § 6354, provides that interest shall not disqualify a witness, except that, in actions where one of the original parties to the contract or cause of action is dead, the other party shall not testify in his own favor or in favor of any party claiming under him, and no party whose right of action or defense is derived to him from one who is, or if living would be, subject to such disqualification, shall testify in his own favor. Held, that a child and heir of intestate was not disqualified by his pecuniary interest from testifying for defendant in an action against an administrator upon a promissory note executed by intestate.

2. WITNESSES (§ 140) — TRANSACTIONS WITH DECEDENT—DISQUALIFICATION—HUSBAND.

At common law a husband was incompetent to testify in actions to which his wife was a party, or, though not a party, in the result of which she had a direct pecuniary interest, and he remains incompetent to testify in such cases except in so far as the statute has removed his disqualification, and in an action against an administrator on a note executed by intestate the husband of a child and heir of intestate was incompetent to testify for defendant.

3. WITNESSES (§ 181)—TRANSACTIONS AFFECTING DECEDENT — DISQUALIFICATION — WAIVER.

As a rule, the right to object to a witness as incompetent is waived if the objection is not taken at the earliest opportunity, so that plaintiff, by permitting a witness for defendant, whose incompetency he knew long before trial, to give considerable testimony, answering 17 questions, and by objecting to his evidence upon another ground before objecting because of his incompetency, waived such incompetency, on the ground that witness was the husband of a person pecuniarily interested in the action, which sought recovery on a note claimed to have been executed by a decedent.

4. WITNESSES (§ 181)—TRANSACTIONS AFFECTING DECEDENT—COMPETENCY—WAIVER.

Where, in such case, a witness was permitted to testify at a former trial without objection, an objection to his competency to testify at a second trial was waived.

5. APPEAL AND ERROR (§ 762)—ASSIGNMENTS OF ERROR—REPLY BRIEF.

An assignment of error in giving instructions will not be considered on appeal, where first made in appellant's reply brief, as it should have been made in her original brief, or in a supplemental brief filed by leave.

Appeal from Circuit Court, Pike County; D. H. Eby, Judge.

Action by Maggie Norvell against Alexander Cooper, Jr., administrator of the estate of Alexander Cooper, Sr. From a judgment for plaintiff, defendant appeals. Affirmed.

Ball & Sparrow and Pearson & Pearson, for appellant. Frank Duvall and J. D. Hostetter, for respondent.

CAULFIELD, J.

This suit originated in the probate court of Pike county as a demand against the estate of Alexander Cooper, Sr., deceased, founded upon a negotiable promissory note for $1,500 alleged to have been made by Cooper during his lifetime to his daughter, the plaintiff. An appeal was allowed and taken from the decision of the probate court to the circuit court. At the trial in the circuit court two men engaged in the banking business, familiar with the handwriting of the decedent, gave testimony tending to prove the execution of the note by him. Thereupon the note was admitted in evidence. To meet this proof the sons and daughters of the decedent, Alexander Cooper, Sr., were permitted to testify in favor of the defendant, and this notwithstanding plaintiff's objection that they were disqualified as witnesses by reason of their pecuniary interest as children and heirs of the decedent; he having died intestate, and they being entitled to share in his estate. The court also permitted the husband of one of said daughters to testify in favor of the defendant administrator, against plaintiff's objection that he was incompetent because of being such husband "and therefore interested in the estate." To the rulings of the trial court in these respects the plaintiff duly saved exceptions and has duly assigned such rulings as errors. We will first dispose of the question as to the competency of the children, and next that as to the competency of the husband of one of them.

1. We may at the outset dismiss the idea that the children of the decedent, Alexander Cooper, Sr., are disqualified as at common law merely because they have a pecuniary interest directly involved in the matter in issue and on trial. That common-law rule has been abolished absolutely and unconditionally by section 6354, Rev. St. 1909. Weiermueller v. Scullin, 203 Mo. 466, 471, 101 S. W. 1088. This general statement must be accepted, however, subject to the qualification as to husband or wife testifying for or against each other, hereinafter mentioned. There is a proviso to section 6354, however, to which plaintiff's counsel cites us, and we will look to it to ascertain if thereby these children of the decedent, Alexander Cooper, Sr., are rendered or declared incompetent. The pertinent portion of that proviso reads as follows: "Provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action, claiming under him, and no party to such suit or proceeding whose right of action or defense is derived to him from one who is, or if living would be, subject to the foregoing disqualification, shall be admitted to testify in his own favor, except as in this section is provided," etc. (The italics are our own.) It will be observed that the only ones by this proviso disqualified to testify are: First, the other party to such contract or cause of action; and, second, any party whose right of action or defense is derived to him from such other party.

In this case the only one of the original parties to the contract or cause of action in issue, who is dead, is defendant's intestate, Alexander Cooper, Sr. The other party is the plaintiff. She is the only one "who is, or if living would be, subject to the foregoing...