Oliver v. McFarland
| Decision Date | 22 April 1926 |
| Docket Number | No. 3964.,3964. |
| Citation | 282 S.W. 735 |
| Parties | OLIVER v. McFARLAND. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Taney County; Fred Stewart, Judge.
Proceeding for the allowance of a claim of J. W. Oliver against the estate of J. B. McFarland, deceased. From a judgment for the claimant, I. C. McFarland, administrator appealed to the circuit court. Judgment for claimant, and administrator appeals. Reversed and remanded.
J. R. Gideon, of Forsyth, for appellant.
R. L. Gideon, of Forsyth, for respondent.
Action upon a lost note. Judgment for plaintiff, and defendant appealed.
This case originated in the probate court. On trial in that court, the claim of plaintiff was allowed. The administrator appealed to the circuit court, where, upon trial before a jury, a verdict for plaintiff was rendered under a peremptory instruction from the court.
Plaintiff could not make a case for the jury without the introduction of oral testimony. There were no admissions by defendant which would relieve the plaintiff of the burden of proof, and, since plaintiff's proof must and did consist of the oral testimony of witnesses introduced by him, it was error for the court to give the peremptory instruction to the jury directing a verdict for plaintiff. There were two questions passed on in the trial in which error was alleged — one was the competency of plaintiff as a witness, and the other related to the statute of limitations.
This action was upon a lost note, and plaintiff offered to testify to the fact of the loss of the note, and also to the contents of the note, and that it had not been paid. An objection to his competency was made on the ground that the other party to the note was dead. This objection was sustained. Later in the course of the trial he again offered to testify, and the court then permitted him to do so, and gave as his reason the fact that in the hearing in the probate court he had been permitted to testify without objection there as to his competency. If in the trial in the probate court the defendant was represented by counsel so that he might be fully advised as to his rights, and his counsel allowed plaintiff to testify there without objection to his competency being made, we think that would be a waiver of his incompetency, and his waiver would hold good in the trial of the same case on appeal in the circuit court. Trautmann v. Trautmann, 254 S. W. 286, 300 Mo. 314; Tomlinson v. Ellison, 16 S. W. 201, 104 Mo. 105; Hodge v. St. Louis Union Trust Co. (Mo. Sup.) 261 S. W. 67, 72; Jones v. Prudential Ins. Co., 155 S. W. 1106, 173 Mo. App. 1; Belch v....
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