Gill v. Campbell (24 Tex. 405, 1859)

Wheeler, C. J.

We are of opinion, that the court erred in admitting the testimony of the defendant, Campbell. It is true, that the statute authorizes a party to a suit, to make the adverse party a witness, in the same manner, and subject to the same rules, which apply in the case of any other witness. (O. & W. Dig., Art. 481.) Either party, if he sees proper, may make his adversary a witness against himself. But it does not follow, that he may make him a witness against a third person, who is a party to the record, merely because the person called is also a party, when otherwise he would be incompetent. That was not the object of the statute. It was simply to compel a party to give evidence against himself. But the defendant, Campbell, was not called to give evi- ' denee against himself. He had not put in any defence to the action. There was no issue to try between himself and the plaintiff. The evidence was not needed to make out the case against himself, and was not offered for that purpose, but solely to make out the case against his co-defendant. The statute did not aid its introduction for that purpose.

The merely being a party to the record, did not render the defendant, Campbell, incompetent; but he was incompetent on the score of interest, and his being a party did not remove his incompetency. The property in question, had been sold in satisfaction of judgments against him. The judgment in favor of the defendant, Gill, had been satisfied. He was not seeking to enforce his judgment in this suit, but to maintain his title as the purchaser of the property. If he failed, that would not reinstate his judgment against his co-defendant, Campbell; but it would enable the latter to have hhe property disposed of, in satisfaction of the debt he owed the plaintiff. The defendant, Campbell, therefore, had an interest in the event of the suit adversely to his co-defendant, against whom he was called to testify, and in favor of the plaintiff calling him. It was not the case of a witness, whose interest is balanced between the parties. The interest was all on one side. The party was therefore incompetent as a witness, and the court erred in admitting him to testify; for which the judgment must be reversed and the cause remanded.

Jones