
    Ida K. Bryant, as Administratrix, etc., v. Daniel Stainbrook.
    
      Note — Action — Incompetent Evidence — Immaterial Error. Where the original payee of a note brings an action thereon against the admin-istratrix of the maker, he is incompetent to testify that he saw the maker sign it, when the execution of the same was a part of a trade between the maker and himself; but when the execution of the note is established fully by other and competent evidence the error in permitting the plaintiff to testify is not reversible.
    
      Error from Bourbon District Court.
    
    The opinion states the case.
    
      John T. Little, 8. T. Seaton, and Cox & Stratton, for plaintiff in error.
    
      J. L. Denison, and James D. Snoddy, for defendant in error.
   Opinion by

Holt, C.:

This action was commenced by Daniel Stainbrook, defendant in error, presenting a note for allowance against the estate of J. A. Bryant, deceased, in the probate court of Neosho county. It was first allowed as a valid claim against the estate, but afterward, when Ida K. Bryant, plaintiff in error, was appointed administratrix of the estate, she made application for a rehearing, which was granted, and upon such rehearing the note was rejected as a valid claim by the probate court. From that order Stainbrook appealed to the district court, and subsequently a change of venue was taken to the district court of Bourbon county, where this case was tried by the court with a jury at the September term, 1886, and judgment rendered for plaintiff, Daniel Stain-brook, for $1,194.75 and costs. A motion was made for a new trial, which was overruled, and the defendant brings the case here for review.

The trial was had upon the papers filed by Stainbrook in the probate court; no pleadings were filed, nor any application made for leave to file them. This case therefore falls within the decision of Neil, Adm’x, v. Case & Co., 25 Kas. 510, and it became necessary to prove the execution of the note, even though it was not denied under oath, as provided by §108 of the civil code. The note itself was not produced in court, but there was ample proof of its loss, and secondary evidence'of its contents. To prove its execution plaintiff was allowed to testify that he saw Bryant sign his name to it; and that only Bryant and his brother, who was a joint maker of the note, and himself, were present; this testimony was admitted over the objection of defendant. It was clearly error to admit it. Section 322 of the civil code provides:

“No party shall be allowed to testify in his own behalf, in respect to any transaction or communication had personally by such party with a deceased person, when the adverse party is the executor, or administrator ... of such deceased person, where they have acquired title to the cause of action immediately from such deceased person.”

This statute has reference as much to auy transaction had with a deceased person as it does to any communication received from him; surely the execution of this note was a transaction had personally with the deceased, and clearly falls within the prohibition of the statute. (Auchamipaugh v. Schmidt, 72 Iowa, 656; Samson v. Samson, 67 id. 253; Holcomb v. Holcomb, 95 N. Y. 316.)

It appears from the record that the main contention of the defendants at the trial was that the note was barred by the statute of limitations, and proof of its execution, although necessary and essential, seemed to be subordinate to that question. If the execution of the note had not been proved otherwise than by the introduction of this incompetent testimony the judgment would be reversed, but there is other testimony of .its execution. The administratrix herself, in the application for a rehearing in the probate court of Neosho county, set forth in her verified petition that this note “was executed to said Daniel Stainbrook by J. H. Bryant as principal, and the said Joseph Bryant, deceased, as surety for his said brother." This admission made by plaintiff, Ida K. Bryant, administra-trix, during the progress of these proceedings concerning this identical note, was sufficient to establish the fact of its execution. It is also in evidence that the Bryant brothers sold a horse to J. F. Stainbrook, son of plaintiff, and they told him to pay the money to his father and to tell him to make an indorsement of the amount upon the note he held against them. Plaintiff testified that this note was the only one of theirs which he had.

While we hold that the admission of this incompetent testimony introduced for the purpose of establishing the execution of this note was error, it became immaterial when its execution was sufficiently proven by other and competent testimony. This being the only error complained of, we recommend that the judgment be affirmed.

By the Court: It is so ordered.

All the Justices concurring.  