Summary
In Chase v. Evoy, 51 Cal. 618, 620, the court stated that Code of Civil Procedure section 1880 does not operate to prevent such a person from testifying for the estate.
Summary of this case from Simon v. Bank of AmericaOpinion
Appeal from the District Court, Third Judicial District, County of Alameda.
Action on a promissory note, of which the following is a copy:
" $ 2500. San Francisco, Aug. 21, 1871.
" Thirty days after demand, at the banking house of Belloc Freres, San Francisco, for value received, we jointly and severally promise to pay to the order of Jane E. Chase, at said banking house, the sum of twenty-five hundred dollars in U.S. gold coin, with interest thereon in like gold coin, at the rate of one and one-half per cent per month, payable monthly in advance.
[$ 1.25 U.S. Stamp.]
" M. G. COBB,
" G. G. BRIGGS,
" JOHN EVOY."
John Evoy died in March, 1873, and the defendant became the administratrix of his estate in April of the same year. This action was commenced in February, 1875, against the administratrix alone. The cause was called for trial on the twenty-sixth of October, 1875, and the plaintiff closed his testimony. The defendant then called Cobb, one of the makers of the note, as a witness; but the court, on objection of the plaintiff's counsel, refused to hear his evidence until Cobb and Briggs had been made parties to the suit. The court then, at the request of defendant's counsel, permitted Cobb and Briggs to file answers to the complaint. They filed such answers, and the trial was resumed on the twenty-ninth of November, when the defendant called Cobb as a witness and the court, on the objection of plaintiff's counsel, refused to allow him to testify. The plaintiff recovered judgment against the administratrix alone, and she appealed.
COUNSEL:
Charles H. Phelps, for the Appellant.
William Irvine and G. W. Tyler, for the Respondent.
OPINION By the Court:
Section 1880 of the Code of Civil Procedure, which took effect July 1, 1874, in defining what persons shall not be witnesses, excludes " parties to an action or proceeding, or in whose behalf an action or proceeding is prosecuted against an executor or administrator upon a claim or demand against the estate of the deceased." The present action is against an administratrix to establish a demand against the estate, and for the purpose of this decision we shall assume that Cobb, one of the makers of the note sued upon, was a party defendant. At the trial, the administratrix offered Cobb as a witness on her behalf, and proposed to prove by him " what, if anything, had been paid thereon, and how paid; " but the court refused to permit Cobb to testify as a witness for the administratrix, on the ground, as we infer, that he was incompetent under the provision of the Code above quoted. This ruling is assigned as error. The language of the statute is very broad, and if literally construed, might exclude all parties to the action, whether called to testify for or against the estate. But to give it this construction would defeat the manifest purpose of the act, and we think the language is capable of a different interpretation. Parties to the action, or in whose behalf it is prosecuted, are not allowed to testify against the estate in a suit to establish a demand against it. One of the parties to the transaction out of which the demand originated being no longer in esse, it was deemed unwise to permit the other party to it to testify to his version of it, when called by the plaintiff in a proceeding against the estate to establish the demand. The statute, it is true, provides in general terms that " the parties to an action or proceeding" against the estate shall not testify; but the obvious meaning of this provision is that a party to the action shall not testify against the executor or administrator. This was the point decided in Blood v. Fairbanks, (50 Cal. 420); and though the language of the opinion in that case is somewhat broad, it must be interpreted with reference to the facts of the case. But in view of the evil to be remedied, the legislature could hardly have intended to prohibit the executor or administrator from calling a party to the action to testify in behalf of the estate. On the opposite theory, the defendant, representing the estate, would not be permitted to call the plaintiff himself to prove that the demand was fraudulent or had been fully paid. Such a construction of the statute is wholly inadmissible, and would be at variance with its manifest intent.
Judgment and order reversed and cause remanded for a new trial.