Perdue v. Perdue

220 S.W. 322

Opinion

Concurring opinion.

For original opinion, see 217 S. W. 694.

See, also, 208 S. W. 353.

HAWKINS, J.

Admission in the district court of Frank Crawford’s written testimony concerning the destruction of the purported will clearly was not repugnant to the spirit or letter of Rev. St. 1911, art. 3690. Upon the trial in the' county court that witness had been “called to testify thereto by the opposite party,” in the fullest sense, and had so testified orally in open court in that cause. Compliance with article 3275 rendered that testimony available in a subsequent trial of the cause in the district court.

Consequently I concur in the decision, and in the reasoning-upon which it rests, as set out in the foregoing opinion of Mr. Associate Justice GREENWOOD. But, although bound by, I am not committed to, the applicable doctrine recently announced by this court in the cited case of Allen v. Pollard, 212 S. W. 468. Therein the testimony of the witness Allen concerning a transaction with the decedent had indeed been taken by the opposite party, but by depositions only, which he had never actually offered in evidence. The facts of the present case make it a much stronger one for admission of the testimony under article 3690.