Rathvon v. White

• Decision Date: 13 March 1891
• Citation: 26 P. 323,16 Colo. 41
• Parties: RATHVON et al. v. WHITE.
• Court: Colorado Supreme Court

26 P. 323

16 Colo. 41

RATHVON et al. v. WHITE.

Supreme Court of Colorado

March 13, 1891

Appeal from district court, Saguache county.

Jas. M. Denny, for appellants.

C D. Jones and O. P. Arthur, for appellee.

HELM C.J.

White as administrator of the estate of James B. Smoot, deceased brought the present action upon a promissory note given Smoot in his life-time by Rathvon & Co. Defendants pleaded set-offs aggregating upwards of $230. These set-offs were alleged to have been due and payable prior to Smoot's death. The cause reached the district court by appeal, and judgment was there rendered for plaintiff. At the trial the deposition of Samuel F.

Rathvon, who had been the leading member of the firm of Rathvon & Co., touching the alleged set-offs, was offered in evidence by defendants. Upon objection, this deposition was rejected, under the inhibition imposed by section 3641, Gen. St. The ruling of the court in this regard constitutes the only assignment of error discussed by counsel for appellant. It is therefore the only assignment that will be noticed in the present opinion. The statute referred to provides that 'no party to any civil action, suit, or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein by his own motion, or in his own behalf, * * * when any adverse party sues or defends as * * * the executor or administrator * * * of any deceased person, * * * unless when called as a witness by such adverse party so suing or defending; and also except in the following cases.' Rathvon was a party to the suit, and there is no dispute but that he was interested in the result. The alleged counter-claims were due prior to the death of Smoot. It is not asserted that the testimony in question was admissible under any of the exceptions enumerated in the statute. It is clear, therefore, that it was within the legislative inhibition. Whitsett v. Kershow, 4 Colo. 419; Gilham v. French, 6 Colo. 196; Levy v. Dwight, 12 Colo. 101, 20 P. 12.

But counsel for appellant contends that section 58, Civil Code 1887, so far modifies the foregoing statute as to render the testimony here offered competent. This section reads 'When cross-demands have existed between persons under such circumstances that if one had brought an action against the other a counter-claim could have been set up, neither shall be deprived of the benefit thereof by the assignment or death of...