Riddles v. Aikin

• Citation: 29 Mo. 453
• Parties: RIDDLES, Plaintiff in Error, v. AIKIN et al., Defendants in Error.
• Decision Date: 31 January 1860
• Court: United States State Supreme Court of Missouri

29 Mo. 453

RIDDLES, Plaintiff in Error,

v.AIKIN et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1860.

1. Interest in the event of a suit will not disqualify a witness; he must, to be rendered incompetent, be a person for whose benefit the suit is prosecuted or defended.

2. An attorney at law is a competent witness in a cause in which he is engaged as attorney; he may testify as to privileged communications made to him by his client, if they are otherwise relevant, when called upon by his client so to do.

3. Where the variance between the allegation in the pleading and the proof is not material, and the adverse party could not have been misled thereby to his prejudice, the court should allow an amendment without costs.

Error to Greene Probate and Common Pleas Court.

This was a suit, as originally instituted, by Thomas Riddles against John H. Aikin to recover the sum of two hundred and fifty dollars, alleged to be due and owing to plaintiff. Plaintiff set forth in his petition that defendant was administrator of the estate of Nancy Aikin; that plaintiff purchased the distributive share of James P. Aikin in that estate; that defendant had notice of this transfer; that the defendant, the administrator, with intent to cheat and defraud plaintiff, paid said distributive share to said James P. Aikin. The other distributees of the estate were afterwards made parties to the suit. At the trial the plaintiff introduced William C. Price as a witness, who testified that he, in March, 1851, as plaintiff's attorney, gave defendant notice in the presence of plaintiff of the transfer to plaintiff of the distributive share of James P. Aikin. It also appeared that on March 3, 1852, said John H. Aikin procured an allowance to himself as administrator of a credit for two hundred and fifty dollars paid to James P. Aikin as the latter's distributive share. The court, by an instruction, excluded from the consideration of the jury the evidence of William C. Price as to the notice of transfer. It also refused to allow an amendment as set forth below in the opinion of the court.

The plaintiff took a nonsuit, with leave, &c.

Parsons, for plaintiff in error.

I. The court erred in refusing to allow the evidence of William C. Price to go to the consideration of the jury; also in refusing the amendment sought. The instructions given were erroneous.

EWING, Judge, delivered the opinion of the court.

The ground upon which the evidence of William C. Price was excluded from the consideration of the jury does not appear from any thing in the record or bill of exceptions. He is no party to the action, nor does he appear to be a person for whose immediate benefit the action is prosecuted. If he is neither the one nor the other, although he may have an interest in the event of the action, he is not on that account an incompetent witness. Such interest would not disqualify, but only go to his credibility. But it does not even appear that he had any interest whatever. It is true he was an attorney, but it is not shown that he had any interest in the suit beyond what ordinarily arises from that relation. But be that as it may, the interest, if any he had, so...