Mr. Chief Justice Farmer
delivered the opinion of the court:
This case has been four times before the Appellate Court. The three published opinions of that court will be found in Robison v. Bailey, 113 Ill. App. 123, Bailey v. Robison, 123 id. 611, and Robison v. Bailey, 137 id. 470. This is its second appearance in this court. (Bailey v. Robison, 233 Ill. 614.) The last trial resulted in a verdict and judgment for defendants in error, which have been affirmed by the Appellate Court, and the record is now before us for review on a writ of error to the Appellate Court.
Plaintiff in error has argued at considerable length the facts and the weight of the evidence, but as these questions are not subject to review by this court they will not be considered.
The most important of the errors of law assigned is the ruling of the circuit court, and its approval by the Appellate Court, in holding that plaintiff in error was an incompetent witness. There was evidence that the defendant in error Archie L. Robison gave plaintiff’s intestate a check for $1500 December 28, 1901, which was after the maturity of the notes sued on, and that this check was paid by the bank to Alexander McCoy in his lifetime.. Defendants in error contended that this was a payment on the notes in controversy. The deceased kept his notes in the Farmers’ National Bank in the city of Pekin, and plaintiff in error, who was the son-in-law of the deceased, was offered as a witness in his own behalf and was sought to be examined as to his knowledge of the contents of the package in which deceased kept his notes during his lifetime. The object, 'as appears from the questions asked, was to prove that on the day the $1500 check was given to the deceased he had other notes of defendants in error besides the two sued on and the one for $1500 paid to plaintiff in error after the death of Alexander McCoy. Objection was made by counsel for defendants in error to his testifying, on the ground that he was an incompetent witness. The incompetency alleged was that he was the administrator and his wife was sole heir of the deceased. The objection was sustained and the witness was not permitted to testify to anything that occurred prior to the death of Alexander McCoy. This ruling of the court was one of the errors assigned in the Appellate Court.
It appears plaintiff in error was called as a witness by defendants in error on the first trial in the circuit court to identify certain transactions between them and the deceased, and to prove the payment by them to the witness, as administrator, of certain sums due on notes payable to the intestate. During his testimony he volunteered statements as to the existence of other notes of defendants in error to Alexander McCoy besides those in controversy and the note which had been paid by defendants in error after the death of McCoy. These statements, on motion of defendants in error’s counsel, were stricken out. On cross-examination he repeated similar statements. In rebuttal plaintiff in error was called as a witness in his own behalf, apparently for the purpose of testifying as to other matters, but' during his testimony he again made similar statements. All these statements were stricken out and the conduct of the witness in making them was assigned as error on the appeal to the Appellate Court. That court held he was an incompetent witness, and that his repeated statements, though stricken out by the court, were so prejudicial as to require a reversal of the judgment, and the cause was remanded for a new trial. It does not appear plaintiff in error was offered as a witness at any of the subsequent trials until the last one, and the trial court held him incompetent to testify as a witness to any facts or transactions occurring prior to the death of Alexander McCoy. The Appellate Court, in its opinion on the last appeal, expressed the view that upon fuller consideration plaintiff in error was a competent witness, but held it was bound by the view adopted and expressed upon this question in its first opinion and that it was not at liberty to reverse the judgment upon that error.
We agree with the last opinion of the Appellate Court that plaintiff in error was a competent witness. The disqualification, under the statute, is not against the party suing or defending as administrator, but against the party suing or defending adversely to the administrator. (Illinois Central Railroad Co. v. Reardon, 157 Ill. 372; Steele v. Clark, 77 id. 471.) In Patterson v. Collar, 34 Ill. App. 632, it was held that on the trial of a claim against an estate of a deceased person the administrator is a competent witness though his wife was an heir of the intestate. That case was affirmed by this court in Collar v. Patterson, 137 Ill. 403, but this question was not discussed in the opinion. We think the ruling of the trial court in holding that plaintiff in error was an incompetent witness was clearly erroneous, and the error was so prejudicial in character that if the question is presented for our review it necessitates a reversal of the judgments of the Appellate and circuit courts.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Chief Justice Farmer
delivered the opinion of the court:
This case has been four times before the Appellate Court. The three published opinions of that court will be found in Robison v. Bailey, 113 Ill. App. 123, Bailey v. Robison, 123 id. 611, and Robison v. Bailey, 137 id. 470. This is its second appearance in this court. (Bailey v. Robison, 233 Ill. 614.) The last trial resulted in a verdict and judgment for defendants in error, which have been affirmed by the Appellate Court, and the record is now before us for review on a writ of error to the Appellate Court.
Plaintiff in error has argued at considerable length the facts and the weight of the evidence, but as these questions are not subject to review by this court they will not be considered.
The most important of the errors of law assigned is the ruling of the circuit court, and its approval by the Appellate Court, in holding that plaintiff in error was an incompetent witness. There was evidence that the defendant in error Archie L. Robison gave plaintiff’s intestate a check for $1500 December 28, 1901, which was after the maturity of the notes sued on, and that this check was paid by the bank to Alexander McCoy in his lifetime.. Defendants in error contended that this was a payment on the notes in controversy. The deceased kept his notes in the Farmers’ National Bank in the city of Pekin, and plaintiff in error, who was the son-in-law of the deceased, was offered as a witness in his own behalf and was sought to be examined as to his knowledge of the contents of the package in which deceased kept his notes during his lifetime. The object, 'as appears from the questions asked, was to prove that on the day the $1500 check was given to the deceased he had other notes of defendants in error besides the two sued on and the one for $1500 paid to plaintiff in error after the death of Alexander McCoy. Objection was made by counsel for defendants in error to his testifying, on the ground that he was an incompetent witness. The incompetency alleged was that he was the administrator and his wife was sole heir of the deceased. The objection was sustained and the witness was not permitted to testify to anything that occurred prior to the death of Alexander McCoy. This ruling of the court was one of the errors assigned in the Appellate Court.
It appears plaintiff in error was called as a witness by defendants in error on the first trial in the circuit court to identify certain transactions between them and the deceased, and to prove the payment by them to the witness, as administrator, of certain sums due on notes payable to the intestate. During his testimony he volunteered statements as to the existence of other notes of defendants in error to Alexander McCoy besides those in controversy and the note which had been paid by defendants in error after the death of McCoy. These statements, on motion of defendants in error’s counsel, were stricken out. On cross-examination he repeated similar statements. In rebuttal plaintiff in error was called as a witness in his own behalf, apparently for the purpose of testifying as to other matters, but' during his testimony he again made similar statements. All these statements were stricken out and the conduct of the witness in making them was assigned as error on the appeal to the Appellate Court. That court held he was an incompetent witness, and that his repeated statements, though stricken out by the court, were so prejudicial as to require a reversal of the judgment, and the cause was remanded for a new trial. It does not appear plaintiff in error was offered as a witness at any of the subsequent trials until the last one, and the trial court held him incompetent to testify as a witness to any facts or transactions occurring prior to the death of Alexander McCoy. The Appellate Court, in its opinion on the last appeal, expressed the view that upon fuller consideration plaintiff in error was a competent witness, but held it was bound by the view adopted and expressed upon this question in its first opinion and that it was not at liberty to reverse the judgment upon that error.
We agree with the last opinion of the Appellate Court that plaintiff in error was a competent witness. The disqualification, under the statute, is not against the party suing or defending as administrator, but against the party suing or defending adversely to the administrator. (Illinois Central Railroad Co. v. Reardon, 157 Ill. 372; Steele v. Clark, 77 id. 471.) In Patterson v. Collar, 34 Ill. App. 632, it was held that on the trial of a claim against an estate of a deceased person the administrator is a competent witness though his wife was an heir of the intestate. That case was affirmed by this court in Collar v. Patterson, 137 Ill. 403, but this question was not discussed in the opinion. We think the ruling of the trial court in holding that plaintiff in error was an incompetent witness was clearly erroneous, and the error was so prejudicial in character that if the question is presented for our review it necessitates a reversal of the judgments of the Appellate and circuit courts.
Defendants in error contend that the competency of the plaintiff in error as a witness was involved in the first appeal to the Appellate Court, he having been held incompetent at the first trial, and one of the grounds upon which a reversal of the judgment in his favor was urged by defendants in error, who were then appellants, was, that when called by them to testify on other matters, and when called as a witness in rebuttal on his own motion, he volunteered statements of matters prior to the death of Alexander McCoy which the court held incompetent and struck out of the record, but it was contended on the appeal that defendants in error were prejudiced by such voluntary statements notwithstanding they were struck out. It is said that the plaintiff in error did not, on said first appeal, question, by assignment of cross-errors, the correctness of the ruling of the trial court in holding plaintiff in error to be an incompetent witness and that he is now estopped from raising that question. We do not think the rule sought to be invoked here is applicable. The rule undoubtedly is that on a second appeal by the same party, where the case has been remanded with directions, he will not be permitted to assign for error any matter that occurred prior to the 'first appeal and which he could have assigned on said first appeal. It is the duty of a party appealing, to direct the court’s attention, by assignments of error, to all the errors claimed to exist in the record, and on a second appeal in the same case the appellant will not be permitted to allege an error contained in the record on the first appeal. In Ogden v. Larrabee, 70 Ill. 510, this court said (p. 513) : “The general rule on this subject is, that where a cause has been heard in the circuit court, reviewed in the Supreme Court and has been remanded with directions as to the decree that shall be entered, a party cannot, on a subsequent appeal, assign for error any cause that accrued prior to the former decision. It is for the very satisfactory reason, as stated in Semple v. Anderson, 4 Gilm. 546, ‘it will be presumed, where a party sues out a writ of error and brings his case here for adjudication and the same is determined upon the merits and errors assigned, that he has no further objection to urge against the record, and. that if errors exist which are not so assigned they are waived.’ The error complained of existed in the former record. The party had an opportunity then to assign it and direct the attention of the court to it, but having failed to do so he ought to be estopped, upon every principle of justice, from alleging, at any future period, error in the same record. Had error intervened prior to the former adjudication it was his duty to assign it, otherwise he will be deemed to have waived it forever. He will not be permitted to have his cause heard partly at one time and the residue at another.”
The above has always been the rule and has been repeatedly adhered to in subsequent decisions, but the question here presented is not within that rule. At the first trial of the case plaintiff in error secured a judgment with which he was satisfied. The opposite party prosecuted an appeal, and the Appellate Court reversed the judgment and remanded the case for a new trial without any directions. We have above set out the circumstances under which the competency of plaintiff in error as a witness was presented to the Appellate Court for decision, as shown by the opinion of that court. We are unable- to see how the failure of plaintiff in error to assign cross-errors in the Appellate Court on the first appeal places him in any different position from what he would have been in if he had assigned cross-errors and they had not been sustained. If the holding of the Appellate Court on the first appeal, that plaintiff in error was an incompetent witness, was binding on that court on a subsequent appeal, this would have been the result whether cross-errors were assigned or not. The question of plaintiff in error’s competency does not appear to have been involved in the second and third appeals to the Appellate Court. Counsel say this was because he was not offered as a witness to testify to anything that occurred prior to the death of his intestate. On the last trial in the circuit court he was offered as a witness and his competency insisted upon. The trial court held him incompetent, to which ruling plaintiff in error excepted, and the ruling was assigned for error in the Appellate Court on the last appeal. That court sustained the trial court on the ground that it could not review its former decision on that question ; ■ that the question was res judicata in that court, and although the court was of opinion it had been decided wrong on the first appeal, it was bound to follow its first opinion. Conceding the correctness of this view of the Appellate Court and that its holding on the first appeal became the “law of the case” in that court, upon subsequent appeals it does not follow that this court is bound by it. (Zerulla v. Supreme Lodge, 223 Ill. 518.) It seems clear that as the question is here presented the rule announced in Ogden v. Larrabee, supra, and other cases, can have no application, and there are no grounds upon which plaintiff in error can be held to be estopped from insisting upon his assignment of error in this court and having it decided.
This litigation has been so prolonged that we would not be disposed to interfere with this judgment except for clear and prejudicial error. The refusal to permit plaintiff in error to testify was such an error, and however much we regret to do so, it is our imperative duty to reverse the judgments of the Appellate and circuit courts and remand the case to the circuit court for a new trial.
Reversed and remanded.