Temple v. Magruder

• Decision Date: 02 April 1906
• Citation: 85 P. 832,36 Colo. 390
• Parties: TEMPLE v. MAGRUDER.
• Court: Colorado Supreme Court

85 P. 832

36 Colo. 390

TEMPLE v. MAGRUDER.

Supreme Court of Colorado

April 2, 1906

Appeal from District Court, Teller County; Louis W. Cunningham Judge.

Proceeding by C. A. Magruder to establish a claim for medical services against W. O. Temple, as administrator of the estate of Thomas Keating, deceased. From a judgment in favor of plaintiff, the administrator appeals. Reversed.

J. M. Brinson, for appellant.

Charles F. Causaul and David P. Wilder, for appellee.

GODDARD J.

On March 13, 1901, C. A. Magruder, the appellee, presented to the county court of Teller County a claim against the estate of Thomas Keating for $333 for medical services rendered said Keating. The court allowed $100 and disallowed the remainder. From this judgment Magruder appealed to the district court. On January 7, 1902, the cause was tried to the court, and judgment rendered in favor of Magruder for $333 against the estate. The administrator brings the case here for review. The principal errors assigned and discussed are the following: First, admitting in evidence the account book of appellee; second, in permitting the appellee to testify of his own motion over the objection of appellant.

1. The reasons assigned in support of the first objection are that the book is not a book of original entry, and was admitted without making the preliminary proof required by statute. Under the ruling in Plummer v. Struby-Estabrooke Co., 23 Colo. 190, 47 P. 294, the book in question must be held to be a book of original entry, and would have been admissible in evidence had the preliminary proof required by the statute been made. Mills' Ann. St. § 4817. There was no compliance with the statute in this respect, and the book should not have been admitted in evidence.

2. It was clearly error for the court to permit the claimant to testify in the case. Section 4816, Mills' Ann. St 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, * * * 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.' By the plain and positive provision of this statute, the appellee was incompetent to testify in the cause of his own motion and over the objection of appellant, upon any...