Sconce v. Henderson
| Decision Date | 28 March 1882 |
| Citation | 1882 WL 10238,102 Ill. 376 |
| Parties | JAMES S. SCONCEv.ELAM HENDERSON et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Appellate Court for the Third District;-- heard in that court on writ of error to the Circuit Court of Vermilion county; the Hon. OLIVER L. DAVIS, Judge, presiding.
Mr. D. D. EVANS, for the plaintiff in error:
William M. Slunkard, being the son and heir of Robert Slunkard, deceased, and, according to his statement, a joint maker of the note sued on, was not a competent witness to prove the execution of the note by his father, in a suit against his estate, he being directly interested in the event of the suit. Whitman v. Rucker, 71 Ill. 413; Boynton v. Phelps et al. 52 Id. 219; Kent v. Mason, 79 Id. 543.
If the law permitted the witness to be made a co-defendant with the administrator, he would be incompetent, and no reason is perceived why he is competent when not joined. As to the questions laying the foundation for impeachment, and excluded by the court, reference is made to 1 Wharton on Evidence, secs. 551, 554; 1 Greenleaf on Evidence, sec. 462; 1 Phillips on Evidence, 293; Stephens' Digest of Evidence, 146; Craig v. Rohrer, 63 Ill. 325.
Messrs. MANN, CALHOUN & FRAZIER, for the defendants in error:
The statute makes all persons, whether parties or not, competent to testify in all cases, except that no person being a party to a suit, or directly interested in the event thereof, can testify, of his own motion, or in his own behalf, where the representatives of a decedent defend as such. The witness, here, was not a party to the suit, and was not directly interested in the event thereof, because if his father's estate is made to pay this sum, the estate has its remedy against him.
The objection that the court refused to allow certain impeaching questions to be asked of the witness, is met by the answer that the questions were not material to the issue.
The declaration in this case counts on two promissory notes, purporting to have been made by William M. Slunkard, and Robert Slunkard, since deceased. The suit was commenced against the administrator of Robert Slunkard, deceased, alone, the surviving maker of the notes not having been made a party. The pleadings put in issue the making of the notes by the intestate, and upon that issue the cause was tried. The jury to whom the cause was submitted found the issues for the plaintiffs, and assessed their damages at the sum due on the notes. The circuit court, after having overruled a motion for a new trial, entered judgment on the verdict. That judgment was affirmed in the Appellate Court, and as the sum involved exceeds $1000, defendant brings the case to this court on error, as he has a right to do under the Practice act.
The affirmance of the judgment by the Appellate Court implies a finding of the facts in the same way they were found in the trial court. It was there...
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