Opinion
June Term, 1876.
Parties — Witnesses.
A party may be compelled to attend court, and be examined in behalf of a coplaintiff, or a codefendant, "as to any matter in which he is not jointly interested or liable," etc,; and in such case he is entitled to pay as a witness.
TRESPASS on the case, brought before the enactment of the Code of Civil Procedure, and tried before Cloud, J., at Spring Term, 1876, of ROWAN.
The following are the facts relating to the points raised and decided in this Court, so far as they could be gleaned from the imperfect transcript sent to this Court as the record:
The plaintiff, among other things, declared that in 1865 he rented to the defendants his store-house in the town of Lexington, for the purpose of carrying on the business of merchandising under the name and style of "Brink Estes." That during the occupation of said store by the defendants, and whilst the same was under their control in accordance with their contract of leasing, they, the defendants, failed to use proper care, and for the want of proper care on their part, the said store-house was burned, to the great damage of the said plaintiff.
The defendants joined in the plea of the "general issue." E. R. Brink, one of said defendants, was subpoenaed as a witness, at first for both, to wit, Brink Estes; and afterwards, to wit, from 16 October, 1873, he was summoned as a witness for his codefendant, L. G. Estes. On the trial he was examined and did testify, as the case states, "on behalf of the defendants." There was a verdict for the defendants.
On the return of the execution issued against the plaintiff for costs, his counsel moved for a rule to retax the bill of costs sent out by the clerk of the court; and on the hearing it was alleged for the plaintiff that the said E. R. Brink, one of the defendants, was allowed the sum of one hundred and sixty-nine dollars and eighty cents ($169.80) for his fees and mileage, he being paid as a witness; whereas, he (69) was in attendance both as a party and witness, and examined in behalf of the defendants.
The court refused the plaintiff's motion, holding that Brink was entitled to pay as a witness, and adjudged accordingly. The plaintiff appealed.
Clement for appellant.
McCorkle and Bailey, contra.
The question lies in a nutshell, and but little can be said on either side.
A party to an action may be examined in his own behalf, C. C. P., sec. 343. In that case he is not entitled to pay as a witness.
A party may be Compelled to attend court and be examined in behalf of a coplaintiff or codefendant, "as to any matter in which he is not jointly interested or liable," etc. C. C. P., sec. 340. In that case he is entitled to pay as a witness.
We are of opinion upon the facts stated that Brink was examined in his own behalf, and section 343 applies. According to the record, plaintiff brought his action to recover of the defendants, E. R. Brink and L. G. Estes, trading as partners under the name of "Brink Estes," damages for an injury to certain property leased to them, by reason of their negligence.
So the liability, if any, was joint, and section 340 does not apply. The case sets out that Brink was examined in behalf of the defendants — in fact, the interest of the defendants was identical, and Brink could not swear for Estes without swearing for himself.
PER CURIAM. Reversed.
(70)