Wetherbee v. Roots

72 Miss. 355

• Court: Mississippi Supreme Court
• Decided: October 15, 1894
• Status: Published

Opinion

Woods, J.,

delivered the opinion of the court.

The action of the court in refusing to permit appellant to testify was not error. The opinion of this court in Duncan v. Gerdine, 59 Miss., 550, is authority directly in point. Since that opinion was delivered, construing the statute (§ 1620, code 1880, brought forward as §1740, code 1892) which declares the incompetency of a witness to testify to establish his OAvn claim or defense against the estate of a deceased person which originated during the lifetime of such deceased person, a new codification of our laws has been made, and this particular statute re-enacted, without material change. The question pressed upon us by counsel with great earnestness, for other and different answer than that found in the case cited, must now be regarded as too well settled to be disturbed.

There is no sufficient identification of the note sued on with the note referred to in the notice under the general issue filed by the defendant below. What was the consideration for the note sued on nowhere definitely appears in the evidence. Defendant’s notice avers a fraud practiced upon him in the procurement of a certain note, but his proofs fail to show that the paper sued on is the note.

Affirmed.