Tillman v. Cocke

• Decision Date: 30 September 1877
• Citation: 68 Tenn. 429
• Parties: I. TILLMAN, JR., Adm'r, v. CALLIE B. COCKE et al.
• Court: Tennessee Supreme Court

68 Tenn. 429

I. TILLMAN, JR., Adm'r,

v.CALLIE B. COCKE et al.

Supreme Court of Tennessee.

September Term, 1877.

FROM KNOX.

Appeal from the Chancery Court. O. P. TEMPLE, Chancellor.

JAS. COMFORT for complainant.

T. R. CORNICK for defendant.

FREEMAN, J., delivered the opinion of the court.

The original bill in this case was filed to settle the estate of the late James R. Cocke. Pickle filed his petition as a creditor and became party, and filed a claim as a creditor of the estate.

We need not at present go into the particulars of this claim further than to say, that it is to be proven and made out solely on the evidence of the claimant himself. He states the fact in his petition, sworn to, and asks an order from the chancellor that he be allowed to be examined as a witness, he being the only party cognizant of the facts, the transaction being one exclusively between Cocke and himself, having some elements of confidence in it, as between them.

The chancellor made an order allowing him to testify. The question presented for our consideration is, was this order proper, and the testimony properly permitted in the case?

The section of the Code under which the right to testify in this case is claimed, is section 3813d, in connection with the previous section. The latter section allows all parties to testify, relieving them from incompetency in all civil courts of this State, notwithstanding they may be parties to the suit or interested in the issue tried. This is the general rule. The other section, however, enacts certain exceptions. “In actions or proceedings by or against executors, administrators or guardians, in which judgments may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with, or statement by the testator, intestate or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court.”

It is evident that under this last clause, it was intended by the Legislature to give the court the power to call the party, or require of him to testify, and that unless so required he should be incompetent under the previous part of the section quoted. Can this be sustained as a law of the land, or does it not confer on our courts legislative, and not judicial power?

We have given some consideration to this question, and we are compelled to hold the latter to be the result. The rule of law, the general rule which is the law of the land, applicable to all the parties named, is, that they are incompetent. Such would be the rule to be enforced by the court on objection made to such a witness, and by which he would be adjudged incompetent under the law to testify. This, then, would be the rule of law; but under this last clause the court might...