Opinion
No. 36089
Decided December 23, 1959.
Evidence — Action against executor — Plaintiff not required to testify by deposition — Where prohibited from testifying on trial — Section 2317.03, Revised Code.
APPEAL from the Court of Appeals for Hamilton County.
This habeas corpus action originated in the Court of Appeals, in which action the petitioner seeks to be released from confinement in a county jail to which he was committed for contempt for refusing to answer certain questions propounded to him in a deposition proceeding.
Petitioner was plaintiff in three actions pending in the Court of Common Pleas based on promissory notes allegedly executed by defendant's decedent. While petitioner's deposition was being taken as if on cross-examination, he refused, on advice of counsel, to answer certain questions as to matters concerning the execution of such promissory notes and the consideration therefor. For such refusal, the notary before whom the deposition was being taken cited petitioner for contempt and committed him to jail.
The Court of Appeals found that petitioner was justified in refusing to answer the questions and ordered that he be discharged from confinement, and that the commitment by the notary be held for naught.
An appeal as of right brings the cause to this court for review.
Mr. Milton M. Bloom, for appellee, Leonard Scholl.
Messrs. Hoover, Beall Eichel, for appellant, Dan Tehan, sheriff.
The case presents the question whether the executor of an estate, defending actions against the estate based on promissory notes claimed to have been executed by defendant's decedent and made payable to plaintiff, can require the plaintiff to give testimony by way of deposition where he is prohibited from testifying on trial by reason of Section 2317.03, Revised Code, which provides in part that "a party shall not testify when the adverse party is * * * an executor," with certain exceptions not involved herein. This court is of the opinion that the executor cannot.
The judgment of the Court of Appeals is affirmed on authority of In re Renee, 159 Ohio St. 37, 42 A.L.R. (2d), 572.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.
Generally, where an action is brought against or by an executor, the executor "may compel" the opposite party (at least where such opposite party is not the kind of "adverse party" specified in Section 2317.03, Revised Code) "to testify to facts that occurred prior to the death of" the decedent; and, where such executor does so, he "waives the incompetency of such" opposite "party to testify as a witness in his own behalf," but the executor's "taking and filing of a deposition of" such opposite party "which is not offered in evidence at the trial * * * does not waive the statutory inhibition against the testimony of" such opposite party. However, in In re Renee, 159 Ohio St. 37, 110 N.E.2d 795, 42 A.L.R. (2d), 572, this court stated that such opposite party "can not be required to give testimony by way of deposition as to matters concerning which" he "is prohibited from testifying on trial by reason of Section 2317.03, Revised Code." That case represents at least a holding that, until the executor waives the incompetency of such opposite party, either expressly or by offering his testimony at the trial, such opposite party cannot be required to testify as a witness.
Verbsky v. Burger, 146 Ohio St. 235, 65 N.E.2d 695.
Roberts v. Briscoe, 44 Ohio St. 596, 10 N.E. 61.
Stream v. Barnard, Exrx., 120 Ohio St. 206, 165 N.E. 727, 64 A.L.R., 1144.
Price, Exrx., v. Abersold, 123 Ohio St. 464, 175 N.E. 862.
If that holding is followed, the judgment in the instant case must be affirmed. Although I dissented from that holding and still disagree with its soundness and am reluctant to follow it, it seems to me that the desirability of equal treatment for all litigants and the desirability of some certainty as to what the law is, that are the basic reasons for the doctrine of stare decisis, require the adherence by this court to that holding. It may be observed that the General Assembly has had over six years to change the law as announced in that holding but has not done so.
BELL and HERBERT, JJ., concur in the foregoing concurring opinion.