Smith v. Billings

• Decision Date: 21 December 1898
• Citation: 177 Ill. 446,53 N.E. 81
• Parties: SMITH v. BILLINGS et al.
• Court: Illinois Supreme Court

177 Ill. 446

53 N.E. 81

SMITH

v.BILLINGS et al.¹

Supreme Court of Illinois.

Dec. 21, 1898.

Appeal from appellate court, First district.

Bill by Charles D. F. Smith against A. M. Billings to enforce a trust. A. M. Billings died pending suit, and Augusta Billings and others, executors, were substituted as parties defendant. From a judgment of the appellate court (76 Ill. App. 454) affirming the judgment below, complainant appeals. Affirmed.W. P. Black, for appellant.

Winston & Meagher (Frederick S. Winston, James F. Meagher, and Silas H. Strawn, of counsel), for appellees.

The original and amended bills in this cause were exhibited by appellant, D. F. Smith, against A. M. Billings, as sole defendant, to establish and enforce a trust in favor of complainant in respect to certain stock which had been held by Billings, appellees' testator, and sold by him for the sum of $60,960. The testimony of appellant was taken in his own behalf by deposition. At the taking of the deposition counsel for A. M. Billings appeared before the notary public and cross-examined him. In his testimony thus taken he gave details of various transactions and conversations between himself and Billings, and identified certain letters written by the latter, which were presented as supporting the allegations of his bill. On October 1, 1894, this deposition was filed in the court below, where the cause was pending. On February 2, 1897, the cause came on for hearing. Appellant offered and read in evidence the deposition. A deposition of one Rew was read, and several witnesses were examined on behalf of appellant. Counsel for Billings called appellant to be sworn and examined by them by way of further cross-examination. On February 5, 1897, and after counsel for appellant had announced that his case was closed, the hearing was adjourned until February 9th following. In the interim between these dates, and during the adjournment, the defendant, A. M. Billings, died. It appears from the bill of exceptions that on February 9th the cause was passed until the 16th of that month. On the latter date the death of Billings, sole defendant, was suggested as having occurred on February 7th, and an order was entered that complainant have summons against appellees, as executors, etc. Their appearance was entered on the same day. On February 18th, the cause being still upon hearing, a motion was presented by appellees to exclude the testimony of complainant as to transactions, conversations, and communications between him and A. M. Billings, which were had in the lifetime of Billings, in relation to the alleged trust. This motion was granted, and all such testimony was excluded. No offer of any further testimony in support of the bill was made. Thereupon the court decreed that the bill of complaint be dismissed for want of equity.

WILKIN, J. (after stating the facts).

The principal question for decision in this case must be whether or not complainant below was entitled, under the facts stated, to have his deposition considered by the court upon the final determination of the cause, and this depends upon the proper construction of section 2 of chapter 51 of our Statutes (Starr & C. Ann. St.). That section 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, of his own motion or in his own behalf, by virtue of section 1, ‘when any adverse party sues or defends * * * as the executor, administrator, heir, legatee or devisee of any deceased person,’ etc., ‘unless when called as a witness by such adverse party so suing or defending,’ and also except in certain cases following, not material to be considered here.

It is very clear, from the language of the statute, that if complainant had offered himself as a witness to testify to the facts stated in his deposition, after the death of his adversary, A. M. Billings, he would have been incompetent, and to that effect are numerous decisions of this court. The contention, however, is that inasmuch as his testimony had been taken and filed in the cause before such death, he being a competent witness at the time of the taking and filing of the deposition, the subsequent death of the defendant did not have the effect of rendering it incompetent. The question is a new one in this court, and, as can readily be seen, of great importance, not only in the present case, but in laying down a rule of evidence to be hereafter followed. Appreciating its importance, aided by the able argument of counsel and the well-considered opinion of the appellate court by Sears, J., we have endeavored to give it full and careful consideration. Its decision is rendered somewhat more difficult than, to our minds, it would otherwise have been, by the fact that the decisions of other courts upon somewhat similar statutes are inharmonious. It is held by courts of the highest respectability that such testimony, though used upon the hearing after the death of the adversary, is competent. These authorities will be found cited in the opinion of the appellate court. Other courts of no less learning and ability have held, as did the chancellor below and as decided by the appellate court, that it was incompetent, and these cases also are cited in the opinion by Sears, J. In determining what shall be the rule in this state, we must choose between the two classes of cases, and follow the rule which seems to us to be based upon the sounder reason, and which is most in harmony with our decisions, in passing upon other questions presented under the foregoing statute.

As stated by the appellate court, those decisions which hold the testimony competent do so upon the reasoning that a witness who was competent to testify at common law, when he gave his evidence, was not rendered incompetent by the fact that he subsequently became interested in the result of the suit,...