Hanks v. Van Garder

Adams,' J.

i peacticü court?*'trial fecttonto013" 'testimony. The plaintiff insists that a portion of the evidence was wrongly admitted. But the case is triable le novo> an(l we have onty to inquire whether the evidence which was properly admitted is sufficient to maintain the defense. The note and mortgage were given March, 1878. ’ One A. B. Oayton testified that in the winter of 1879 and 1880 he heard the intestate say that he had a mortgage on stock and machinery given him by Yan Garder to secure him for signing as surety to one J. N. Smith, one P. W. McLelland and one Nathan Lamborn. It is not shown that more than one mortgage was executed by the defendant to the intestate upon stock and machinery. We think, therefore, that the reasonable inference is that the mortgage referred to by the intestate was the one now in suit.

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2.-: suppress deposition not enlarged. We come next to inquire whether .the indebtedness due Smith, McLelland and Lamborn respectively, has been paid. The Lamborn indebtedness the defendant testifies that he paid himself. The plaintiff insists in argument that the defendant was incompetent to testify to such fact as against the plaintiff as administrator. But while the plaintiff moved to suppress a part of the deposition he n did not move to suppress this part, and did not move to suppress any part on the ground that the defendant was incompetent to testify against the plaintiff as administrator. On the reading of the deposition he objected to the part above set out, but only on the ground that it was irrelevant and immaterial, and such objection it is manifest was not well taken.

3. —-—: ruiod on deemed waived. As to the payment of the Smith notes the defendant testified as follows: “Int. 9. Have you the notes? If so produce them. Ans. I have not got them; Oayton had them; I gave him some other notes in payment and he then assumed the payment of the Smith notes and took them up.” The plaintiff moved to exclude this testimony as not responsive, but the motion does not appear to have been , ruled upon and the ruling therefore must be deemed to have been waived.

As' to the McLelland indebtedness the defendant testified as follows: “It was put in judgment and the judgment was paid or purchased by Cayton.” The plaintiff objected to this testimony as irrelevant and immaterial and incompetent, as seeking to disclose a personal transaction with the decedent. In our opinion the objection was not well taken.

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husband and hibftéf communieation.

*181 We have only to inquire whether anything is due to the intestate’s estate by reason of the payments which the intestate made. We have already set out some evidence tending to show that the defendant gave the intestate notes by reason of which the intestate assumed the payment of the Smith notes. But he further testified, and as it appears without objection, when asked whether he had paid the Smith notes *182 upon which Cayton was surety, that he did by giving a mortgage and notes against one Mrs. C. Martin. As to the McLelland indebtedness Mrs. Cayton testified as follows: “Int. Does the estate of James C. Cayton now hold the claim against Yan Garder on the McLelland note or judgment? Ans. No; itismyclaim; it was assigned to me by Cay-ton before he died.” This was objected to as.irrelevant, immaterial and incompetent, as seeking to disclose a communication from husband to wife. In our opinion the objection was not well taken. The transfer of a claim is not a communication, we think, within the meaning of the statute. Before the deposition of Mrs. Cayton was read, the plaintiff filed a motion to suppress it on the ground that the witness was the widow of the intestate and interested in the. estate. The motion does not appear to have been ruled on and must be deemed to have been waived.

In- our opinion the plaintiff’s petition was rightly dismissed.

Affirmed.