Wade v. Killen

• Citation: 200 Ala. 212,75 So. 970
• Decision Date: 17 May 1917
• Docket Number: 8 Div. 9
• Parties: WADE v. KILLEN.
• Court: Supreme Court of Alabama

75 So. 970

200 Ala. 212

WADE v. KILLEN.

8 Div. 9

Supreme Court of Alabama

May 17, 1917

Appeal from Circuit Court, Lauderdale County; C.P. Almon, Judge.

Assumpsit by M.E. Killen, as administratrix against J.C. Wade as administrator. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Acts 1911, page 449. Affirmed.

The following are the assignments of error referred to:

(3) The court erred in refusing, on motion of defendant, to exclude the testimony of Mary E. Killen, on the ground that said witness was interested in the result of the suit, and the evidence was as to transaction with a deceased person whose estate was interested in the result of the suit.

(4) The court erred in overruling the motion to exclude the evidence of witness Mary E. Killen on the ground that it was immaterial and did not show any credits on the note in evidence from 1898 to 1911, and on the further ground that it failed to give any information about the dates of the credits, and that most of the testimony of the witness related to alleged credits not shown on the note.

(5) The court erred in failing to exclude the testimony of the witness J.C. Killen as to credits on the note in evidence, excepting as to credits appearing on the notes for the reason set forth in the motion.

(9) The court erred in rendering judgment in the sum of $300.

Paul Hodges and S.W. Frierson, both of Florence, for appellant.

Mitchell & Hughston, of Florence, for appellee.

SAYRE J.

Action on a promissory note brought by appellee as administratrix of J.J. Stutts, deceased, against appellant as administrator of B.F. Chisholm, deceased. The statutes of limitations of six and ten years were pleaded, and the questions litigated related to payments which appellee, to meet the plea, claimed had been made from time to time.

No tenable objection was taken to appellee's testimony to the effect that not more than two or three years had elapsed between the payments made by appellant's intestate. It was not necessary that partial payments should be indorsed on the note or evidenced by written receipts; it was competent to prove them by parol. 8 Encyc. of Ev. 336. The other objection taken to this testimony, as interpreted in the brief, went to its probative force rather than its competency. We find no error here.

The exception made the basis of assignment of error numbered 3 cannot be sustained. The exception must be construed most strongly against the exceptor. A part at least of appellee's testimony, to which the objection was made, was competent because it related to transactions...