Anthony v. Sturdivant

50 So. 1028, 163 Ala. 530, 1909 Ala. LEXIS 561

• Court: Supreme Court of Alabama
• Decided: November 16, 1909
• Status: Published

Opinion

DOWDELL, C. J.

This is an action in assumpist on three several promissory waive notes described in the complaint. The suit as originally commenced was against the appellant, Phabra Anthony, as executrix of W. A. Anthony, deceased, and S. W. Anthony, jointly. Subsequently, .as the judgment Recites, the plaintiffs amended their complaint by striking therefrom the name of S. W. Anthony as a defendant, on his suggestion by plea-of “his adjudication of bankruptcy.” The defendant Phabra Anthony, as executrix, etc., filed a plea of non est factum, on which issue was taken and the cause tried, and judgment was rendered for the plaintiffs.

There is but one question presented by the record for ■our consideration, and that goes to the competency of ;S. W. Anthony, called as a witness by the plaintiffs, to testify, against the objection of the defendant Phabra Anthony, as to any transaction between the witness and defendant’s testator, W. A. Anthony, or as to any statement. made by deceased to said witness, relative to the subject-matter of the suit. The complaint avers that S. W. Anthony was a joint maker of the notes with the said W. A. Anthony, deceased. To fix a joint liability would be to lessen the burden of S. W. Anthony, .and consequently he had a direct pecuniary interest in the result of the suit. To fix such liability was unquestionably opposed to the interest of the estate of W. A. Anthony, deceased: The facts bring the case within the letter and spirit of the statute. Section 4007 of the Code of 1907. The witness was rendered incompetent under the statute to testify as to any transaction with or ■statement by the deceased, and the court committed reversible error in admitting this evidence against the objection of the defendant.

Nor was the situation relieved by the amendment of the complaint in striking out S. W. Anthony as a co-defendant, on the suggestion of “his adjudication of his bankruptcy.” The disqualifying interest remained the same. The “adjudication of his bankruptcy” is not the ■equivalent of a discharge in. bankruptcy. We are not to be understood, however, as intimating that a discharge in bankruptcy would have removed the disqualification. As to this we express no opinion.

It is contended by appellees that, being called to testify by the plaintiffs, he was called by one opposed in interest, and thereby was made competent within the language of the statute. This contention is without merit. The calling to testify by one opposed in interest is not sufficient, where there is another opposed in interest objecting. See Browning v. Kelly et al., 12 Ala 645, 27 South. 391, and cases there cited.

For error indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.

Simpson, McClellan, and Mayfield, JJ., concur.