Gill v. Campbell

24 Tex. 405

• Court: Texas Supreme Court
• Decided: July 1, 1859
• Status: Published

Opinions

Wheeler, C. J.

We are of opinion, that the court erred in admitting the testimony of the defendant, Campbell. It is true, that the statute authorizes a party to a suit, to make the adverse party a witness, in the same manner, and subject to the same rules, which apply in the case of any other witness. (O. & W. Dig., Art. 481.) Either party, if he sees proper, may make his adversary a witness against himself. But it does not follow, that he may make him a witness against a third person, who is a party to the record, merely because the person called is also a party, when otherwise he would be incompetent. That was not the object of the statute. It was simply to compel a party to give evidence against himself. But the defendant, Campbell, was not called to give evi- ' denee against himself. He had not put in any defence to the action. There was no issue to try between himself and the plaintiff. The evidence was not needed to make out the case against himself, and was not offered for that purpose, but solely to make out the case against his co-defendant. The statute did not aid its introduction for that purpose.

The merely being a party to the record, did not render the defendant, Campbell, incompetent; but he was incompetent on the score of interest, and his being a party did not remove his incompetency. The property in question, had been sold in satisfaction of judgments against him. The judgment in favor of the defendant, Gill, had been satisfied. He was not seeking to enforce his judgment in this suit, but to maintain his title as the purchaser of the property. If he failed, that would not reinstate his judgment against his co-defendant, Campbell; but it would enable the latter to have hhe property disposed of, in satisfaction of the debt he owed the plaintiff. The defendant, Campbell, therefore, had an interest in the event of the suit adversely to his co-defendant, against whom he was called to testify, and in favor of the plaintiff calling him. It was not the case of a witness, whose interest is balanced between the parties. The interest was all on one side. The party was therefore incompetent as a witness, and the court erred in admitting him to testify; for which the judgment must be reversed and the cause remanded.

Jones <f- Petty, for the motion.

The witness, D. C. Campbell, was a competent witness, his interest being equally balanced between the parties. If the plaintiff, Campbell, recovered the property from Grill, then the latter could be substituted in the place of the creditor, or in other words, his debt and judgment would be revived against D. C. Campbell. (See Howard v. North, 5 Texas Rep. 290.) Again, the fraudulent vendor, though a party to the suit, and of course interested, (whether a party or not,) is a competent witness. (See William G. Hall and wife v. James Murphy, 14 Texas Rep. 637; and George Hancock v. John Horan, 15 Id. 507.) These two cases are conclusive of the case at bar. In the former, the fraudulent vendor, though a party to the suit, was declared competent, and in the latter, not being a party, he was declared to be competent. In this latter case, the suit (as in the case under consideration,) was for the recovery of town lots sold under execution. We most respectfully call the attention of the court to these authorities, and respectfully ask for a rehearing in this case.

Again, the objection of interest was not made to the witness, Campbell, in the court below, and cannot now be heard for the first time in this court. The law, in our opinion, settles beyond controversy, the competency of D. C. Campbell, and the jury have decided upon his credibility.

Reversed and remanded.

The appellee’s counsel subsequently made application to the court for a rehearing.