Albaugh v. James

29 Ind. 398

• Court: Indiana Supreme Court
• Decided: May 15, 1868
• Status: Published

Opinion

Gregory, C. J.

The appellee moves to strike out the bill of exceptions, because it was not filed within the sixty days allowed by the court. Final judgment was rendered on the 21st of June, 1867, at which time this entry appears: “ and the defendants are given sixty days to prepare their several bills of exceptions.” The bill of exceptions was signed by the judge on the 17th of August, 1867, but not filed by. the clei’k until the 6th of September following.

The code provides that “the party objecting to the decision must except at the time the decision is made; but time may be given to reduce the exception to writing, but not beyond the term, unless by special leave of the court.” 2 G-. & II., § 343, p. 209. The bill of exceptions was prepared and signed by the judge within the time allowed by the order, and was strictly within its terms. That it-was not filed with the clerk until after the lapse of the time allowed for its preparation cannot avail the appellee in his motion to -strike it out.

This was a suit by James against the appellants, husband and wife, for the abduction of the wife of the plaintiff. Each of the defendants was offered as a witness in his and her own behalf. The husband was allowed to testify that he had nothing to do with the abduction, but was not allowed to state the circumstances under which the plaintiff’s wife left Mm. The wife was excluded.' This action of the court was one of the causes assigned for a new trial.

J. R. Slack and W. G. Kocher, for appellants. J. R. Coffroth, for appellee.

The defendants had each the right to testify in their own behalf. Because the testimony of the husband might benefit the wife, and that of the wife might benefit the husband, is no reason for excluding the evidence. It would, however, be the duty of the court, by instructions, if asked, to limit the effect of the testimony to the case of the party testifying. When a party is sued, he or she has the right to testify in his or her own behalf; and a plaintiff' cannot deprive a defendant of this right by joining husband and wife in the same suit. A husband could not call a wife to testify for him, nor could a plaintiff call her to testify against her husband, but a husband and wife jointly sued may each testify in their own behalf. The court below erred in overruling the motion for a new trial.

The judgment is reversed, with costs, and the cause remanded, with directions to grant a new trial, and for further proceedings.