Draggoo v. Draggoo

10 Ind. 95

• Court: Indiana Supreme Court
• Decided: May 24, 1858
• Status: Published

Opinion

Per Curiam.

In this case the defendant called the plaintiff as a witness to answer three inquiries. He answered them, and then proceeded to state further facts. The defendant then offered himself as a witness as to those further facts. He was rejected. The statute is that, “ any party examined by an adverse party may testify in his own behalf in respect to any matter pertinent to the issue; but if he testify to any new matter not responsive to the inquiries put to him by the adverse party, such adverse party may offer himself as a witness on his own behalf in respect to the new matter, and shall be received.” 2 R. S. p. 96, 300.

A. Ellison, for the appellant.

It is not easy to determine, in every case under this pro- . . , J , , vision, what shall be regarded as new matter, i he testimony must all be pertinent to the issue, still, though thus pertinent, it may be new matter. It must be responsive to the question put, or it will be such matter. But how wide a range of explanatory facts may be given in response to an inquiry? This is the difficulty.

Here, the defendant claimed, as a set-off to the plaintiff’s suit, the amount of a note made jointly by the plaintiff and defendant to a third person. The defendant claimed that he paid the whole of the note, that he was but a surety on the note, and, lienee, was entitled to the whole amount. One step in making out his case would be to prove that he paid the whole of the note. To prove this, he called the plaintiff, and asked him who paid said note. He replied that the defendant paid it. He then went on to testify to a series of arrangements between him and the defendant, by which he had satisfied the latter, &c.

We think this was new matter, and that the defendant should have been allowed to testify

(1).

The judgment is reversed with costs. Cause remanded, &c.

See Thompson v. Shaefer, 9 Ind. R. 500.