Peterie v. Bugbey

By the Court, Sanderson, C. J. This is an appeal from an order denying a motion for a new trial. Two points are made by appellants: First—That the

verdict is against the weight of evidence. Second—That the Court erred in holding that one Ackley, offered as a witness by the defendants, was incompetent on the ground of interest.

First—Upon the first ground the judgment cannot be disturbed. As to the bona fides of the sale of the property in controversy by Stackhouse to the plaintiff, the testimony is conflicting; and under the the rule which has long been established in this State, we are not at liberty to disturb the verdict of the jury. Where the testimony is conflicting, the result mainly depends upon the credibility of the witnesses. Of that the jury and the Court below have an opportunity to judge, but this Court has not. Should we attempt to weigh the evidence as it is presented to us and decide between conflicting statements, the chances for the intervention of error would be increased rather than diminished.

[423]Second—The witness, Ackley, was not an assignor of a “ thing in action or contract” within the meaning of the four-hundred and twenty-second section of the Practice Act, as amended in 1861. There is no “ thing in action or contract ” involved in this case of which Ackley is the assignor, nor of which the defendants or either of them are the assignees. The note which was in part assigned by Ackley to Beck constitutes no part of this suit. It was part of the consideration upon which the suit of Beck against Stackhouse was founded, and had Beck offered Ackley as a witness in that case the question could have been there presented, and there only, which is attempted to be presented here. The status to which the four hundred and twenty-second section applies, only exists where the “ thing in action or contract ” assigned is the subject matter or part thereof of the suit pending, and in which the assignor is offered as a witness.

Nor has Ackley such a “ present, certain, and vested interest ” in the result of the suit as disqualifies him under the three hundred and ninety-first section of the Practice Act. The test of the interest which renders a person incompetent as a witness is “ that he will gain or lose by the direct legal operation of the judgment; or that the record of the judgment will be legal evidence for or against him in some other-action.” Under this test it is clear' that Ackley has no interest in the result of this suit. The title of Beck to that portion of the property in question which was sold by him to Ackley had vested in Ackley before this suit was brought. Suppose the judgment to be in favor of the plaintiff, it could not directly operate against Ackley, for not being a party to the suit, the execution, either for a delivery of the property, or for its value in money, could not run against him. The property in his possession could not be taken under the execution, nor could its value be made by a levy and sale of his property. Nor can there be any other action to which Ackley could be a party and in which the record of the judgment in this case could be used as evidence for or against him. Counsel for respondent seem to have confounded the relative posi