Lewis v. Weisenham

Missouri Court of Appeals

Lewis v. Weisenham

1 Mo. App. 222, 1876 Mo. App. LEXIS 50

DecidedFebruary 14, 1876

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This text of 1 Mo. App. 222 (Lewis v. Weisenham) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lewis v. Weisenham, 1 Mo. App. 222, 1876 Mo. App. LEXIS 50 (Mo. Ct. App. 1876).

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Opinion

Lewis, J.,

delivered the opinion of the court.

Jesse Evans, the plaintiff’s intestate, obtained judgment 'before a justice of the peace against the defendant as indorser of a promissory note. Pending defendant’s appeal [223]*223to the Circuit Court, and before the trial, Evans died. At "the trial, after the introduction by plaintiff of the customary notarial proofs of protest and notice, the defendant offered to testify in his own behalf, to the effect that he had never received notice of the protest. Upon plaintiff’s objection, the court excluded the testimony. This ruling presents the only question in the record for our consideration.

The statute is too plain to be misunderstood. “In .actions where one of the original parties to the contract or oause of action in issue and on trial is dead, or is shown to the court to be insane, the other party shall not be admitted to testify in his own favor.” Wag. Stat. 1372, sec. 1.

Appellant’s counsel argues that this provision should not ■exclude the defendant’s testimony when offered for the purpose merely of contradicting the notary’s certificate. But we are allowed no discretion on account of the purpose for which the testimony may be offered. The test is applied "to the parties only. Evans and the defendant were the ‘ original parties to the cause of action in issue and on ■.trial.” The notary was a mere agent, and not a party. Evans was dead at the time of the trial, and, therefore, the ■defendant could not be admitted to testify in his own favor. Stanton v. Ryan, 41 Mo. 510. the judgment is affirmed.

The other judges concur.ring,

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Lewis, J.,

delivered the opinion of the court.

Jesse Evans, the plaintiff’s intestate, obtained judgment 'before a justice of the peace against the defendant as indorser of a promissory note. Pending defendant’s appeal [223]*223to the Circuit Court, and before the trial, Evans died. At "the trial, after the introduction by plaintiff of the customary notarial proofs of protest and notice, the defendant offered to testify in his own behalf, to the effect that he had never received notice of the protest. Upon plaintiff’s objection, the court excluded the testimony. This ruling presents the only question in the record for our consideration.

The statute is too plain to be misunderstood. “In .actions where one of the original parties to the contract or oause of action in issue and on trial is dead, or is shown to the court to be insane, the other party shall not be admitted to testify in his own favor.” Wag. Stat. 1372, sec. 1.

Appellant’s counsel argues that this provision should not ■exclude the defendant’s testimony when offered for the purpose merely of contradicting the notary’s certificate. But we are allowed no discretion on account of the purpose for which the testimony may be offered. The test is applied "to the parties only. Evans and the defendant were the ‘ original parties to the cause of action in issue and on ■.trial.” The notary was a mere agent, and not a party. Evans was dead at the time of the trial, and, therefore, the ■defendant could not be admitted to testify in his own favor. Stanton v. Ryan, 41 Mo. 510. the judgment is affirmed.

The other judges concur.ring,

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1 Mo. App. 222, 1876 Mo. App. LEXIS 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-weisenham-moctapp-1876.

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