Page v. Kankey

• Decision Date: 31 August 1840
• Citation: 6 Mo. 433
• Parties: PAGE v. KANKEY.
• Court: Missouri Supreme Court

6 Mo. 433

PAGE

v.KANKEY.

Supreme Court of Missouri.

August Term, 1840.

APPEAL FROM THE CIRCUIT COURT OF COOPER COUNTY.

P. R. HAYDEN, for Appellant. 1st. That the court erred in refusing to permit the defendant to cross-examine Childs, as he proposed to do after he had been sworn in chief by the plaintiff. 4 Wend. R. 369, Jackson on the demise of Lowell v. Parkhunt; 1 Phillips' Ev. 228, old edition, 273-4 Cowen's edition; 2 Wend. R. 166; 2 Wend. R, 583; 5 Mass. 334-5-6; 11 Pickering, 273-4. 2nd. That the plaintiff did not take issue to the plea of set-off, nor did the jury find the same, which was left undisposed of, and therefore the court erred in rendering judgment upon the finding of the jury upon the plea of non-assumpsit. Roland v. Sargeant, 1 Mo. R. 437-8.

ADAMS and MILLER, for Appellee. 1st. That the witness, Childs, was properly sworn in chief, as there is no other mode of swearing a witness to testify, except where the witness is a party to the record. See Jackson v. Parkhunt, 4 Wend. R. 370. 2nd. That when the defendant below proposed to cross-examine Childs, in relation to a matter about which he had not been examined by the plaintiff below, he thereby made him his own witness, and being an interested witness, he was properly excluded by the court. 2 Caine's R. 178. 3rd. That there was no motion by appellant for a new trial or an arrest of judgment, and consequently the judgment of the Circuit Court cannot be disturbed. 4 Mo. R. 540, Polk v. The State; Davidson v. Peck, 4 Mo. R. 445.

NAPTON, J.

Kankey sued Page in assumpsit, to which defendant plead non-assumpsit and set-off. Issue was taken on the plea of non-assumpsit; verdict and judgment for plaintiff. On the trial, plaintiff introduced one Childs as a witness, who testified on his voir dire that he was interested in the event of the cause, in favor of Page. Notwithstanding, plaintiff examined him and proved by his testimony, the signature of said Page to certain letters, which he wished to read to the jury. Page, the defendant, proposed to cross-examine witness in relation to other matters involved in the issue, but the court refused to permit the witness to be examined in relation to any point except the signature of said letters by Page. The defendant excepted to the opinion of the ceurt, and this is all the error relied on in this court.

The rule on this subject is clearly laid down by Phillips in his treatise on Evidence: “If a witness is called by a party, merely for the purpose of...