Park v. Locke

• Decision Date: 01 January 1887
• Citation: 2 S.W. 696
• Parties: PARK, Adm'r, <I>v.</I> LOCKE, Adm'r.
• Court: Arkansas Supreme Court

Page 696

2 S.W. 696

PARK, Adm'r,

v. LOCKE, Adm'r.

Supreme Court of Arkansas.

January 1, 1887.

Appeal from circuit court, Sevier county.

The appellant, for himself.

COCKRILL, C. J.

This is a suit commenced before a justice of the peace by S. P. Park, as administrator of the estate of J. F. Puckett, deceased, against G. H. Nall, on a note executed by him to said J. F. Puckett. The defendant, G. H. Nall, filed a set-off, an open account. The case was taken to the circuit court by appeal, and while pending there, and before the death of G. H. Nall, the deposition of S. P. Park, plaintiff, was taken upon notice, and in accordance with the statute, the said S. P. Park being a resident of Hempstead county, Arkansas, not joining this county, where the action was pending. After the deposition was taken and published, G. H. Nall died, and the suit was revived against his administrator, George T. Locke. On the trial of the cause in the circuit court, that portion of the deposition of Park relating to admissions or statements made by Nall to him, concerning transactions between Nall and Puckett, and which were material to the issue under the set-off, was excluded from the jury. The exclusion of this evidence raises the only question presented. The appellant had judgment against the appellee, but in a less amount than he was entitled to, if the evidence had been admitted and credited by the jury.

In an action by or against an administrator, in which judgment may be rendered for or against him, the opposing party to the record is not a competent witness to speak of personal transactions with, or statements by, the deceased. This is the written law of the state, as found in section 2, Schedule Const. 1874. The reason for it, it is said, is found in this, viz., that experience teaches that it is the part of prudence and wisdom to provide that, when one of the parties to a transaction is cut off from giving his version of it by death, the other shall not be heard. McRae v. Holcomb, 46 Ark. 306. The appellant's case is within both the letter and the reason of the law. He was a party to the record, and offered to testify to statements made by a person who was at the time of the trial dead, and whose administrator was the opposing party; and the testimony would have tended to augment the amount of the liability of the deceased's estate. The witness was competent when the deposition was taken, because he deposed in the life-time of his adversary; but, in the...