Jackson v. Fowler.

appeal to the Supreme Court, no question is presented as to the overruling of a motion for a new trial, based upon the alleged ground of newly-discovered evidence.

From the Henry Circuit Court.

T. B. Redding, for appellant.

J. Brown and J. M. Brown, for appellee.

PERKINS, J.-Suit by the appellee, against the appel

lant.

The complaint was in two paragraphs.

The first was for the amount of a note placed by the appellee with the appellant, as collateral security, and which he had appropriated to his own use, and refused, after the principal had paid the debt on which he was surety, to account for, etc.

The second paragraph contained the common counts at common law, with a bill of particulars.

The paragraphs were severally demurred to, as not containing sufficient facts.

The demurrer was overruled, and exceptions entered.
The paragraphs were severally good.

The first contained a definite description of the note,with the other necessary averments.

The second contained a bill of particulars, duly made part of the paragraph.

Answer:

1. General denial;

2. By way of set-off.

Reply.

The issues were tried by a jury, and a verdict returned for the plaintiff.

A motion for a new trial was overruled, and exceptions reserved.

One of the grounds of the motion was newly-discovered evidence.

The alleged errors assigned are:

Nicklaus et al. v. Dahn et al.

That the court erred in overruling the demurrers severally to the paragraphs of the complaint, and in overruling the motion for a new trial.

We have already seen that the first error does not exist. The only point made by counsel in support of the alleged error in overruling his motion for a new trial is, that the newly-discovered evidence entitled him to such trial. The evidence given on the trial not being in the record, we can not say that the newly-discovered evidence was not merely cumulative, nor that it might probably produce a different result on another trial. Hence we can not say the court erred in refusing a new trial on this ground. 2 R. S. 1876, p. 181, note 2.

The judgment is affirmed, with costs

NICKLAUS ET AL. v. DAHN ET AL.

WITNESS.--Partnership.-Action by Surviving Partner.-The defendant, in
an action by a surviving partner on a partnership chose in action, is a
competent witness in his own behalf.

SAME. —Administrator of Deceased Partner not a Proper Co-Plaintiff.—The
administrator of the estate of the deceased partner is neither a necessary
nor proper party plaintiff, and the defendant can not, by making such
administrator a co-plaintiff, be deprived of his right to so testify.
SAME.-Misjoinder of Parties.- Waiver.-Decedents' Estates.-Judgment.-
No judgment, either for or against such estate, can properly be rendered
in such action, but such misjoinder of the administrator is waived by a
failure to object thereto.

From the Bartholomew Circuit Court.

F. T. Hord, for appellants.

R. Hill, for appellees.

BIDDLE, J.—Complaint by John Nicklaus, surviving partner of the firm of John Nicklaus & Co., composed of the

Nicklaus et al. v. Dahn et al

said Nicklaus and Bernard Jacobs, and Christian Pfeifer, administrator of the estate of said Bernhard Jacobs, deceased, against Samuel Dahn and George Dahn, on three several promissory notes, purporting to be executed by the said Dahns, payable to the order of John Nicklaus & Co., and also upon an account for merchandise, amounting to six hundred and forty-nine dollars.

Answer filed; issue joined; trial by the court; finding in favor of the appellee George Dahn, and against the appellee Samuel Dahn. Judgment accordingly.

The appellants complain of two rulings by the court, which may be regarded as one, namely, that the court allowed each of the appellees to testify at the trial; and the third, that the evidence does not support the finding; all of which are reserved in the record, and discussed in their brief.

It appears to us that the appellees were competent witnesses. They were clearly competent against the surviving partner, Nicklaus; and no judgment could be rendered in the case, either for or against the estate represented by Pfeifer. The meritorious right of action was in Nicklaus, the surviving partner. Pfeifer, the administrator, could have no interest in the judgment recovered till after the final settlement of the firm of "John Nicklaus & Co." He was an unnecessary party; but, as no advantage was taken of it, the point is waived. The appellants could not,. merely by making an unnecessary party plaintiff, thereby cut off the right of the appellees to become witnesses in the case.

The general rule is, that neither husband nor wife can be a witness for or against each other; yet, when they jointly sue, or are jointly sued, and have separate interests, each is a competent witness-the husband for himself, and the wife for herself-although the testimony of either may benefit the other. Howell v. Zerbee, 26 Ind. 214; Lockwood v. Joab, 27 Ind. 423; Haskit v. Elliott, 58 Ind. 493.

Sidener v. Galbraith et al.

Upon the same principle, we think the appellees in the case we are considering were competent witnesses. The general rule is, that all parties are competent witnesses for themselves; the appellees in this case have not been brought within any of the exceptions to the rule.

The authorities cited by the appellants all go to cases wherein a judgment might have been rendered either for or against the estate of the deceased administrator, and where the meritorious cause of action was in the plaintiff, and hence do not support their views.

There is evidence in the case tending to prove every point necessary to support the finding, and it is too substantial for us to say that it is not sufficient.

The judgment is affirmed, at the costs of the appellants.

SIDENER V. GALBRAITH ET AL.

STATUTE OF LIMITATIONS.-Action to set aside Sheriff's Sale.- Fraudu
lent Conveyance.- Limitation of Six Years.--An action to set aside, as
fraudulent, a sheriff's sale of land and a subsequent conveyance of the
same by the execution defendant to the purchaser at such sheriff's sale,
is barred by the statute of limitations of six years.
SAME.—Continuation of Action which has Failed.—An action by a pur-
chaser of land at a sheriff's sale, against a purchaser of the same land at
a previous sheriff's sale, to set aside the first sale as fraudulent, having
been finally determined against the plaintiff on account of a defect in
his title, he subsequently purchased the same land at a third sheriff's sale,
and, within five years from the determination, but more than six years
from the commencement, of the first action, he commenced a suit against
the same defendant and the judgment defendant, to set aside, as fraudu-
lent, such first sheriff's sale and also a conveyance of the same land, made
by such judgment defendant to his co-defendant after the commencement
but before the determination of the first action.

Held, that the second action was not a continuation of the first action, within
the meaning of section 218 of the code, and that an answer of the statute
of limitations of six years is sufficient.

Sidener v. Galbraith et al.

From the Bartholomew Circuit Court.

S. Stansifer and F. T. Hord, for appellant.
R. Hill, for appellees.

PERKINS, J.-On the 19th day of October, 1861, the sheriff sold the land of James Anderson, by virtue of an execution duly issued from the clerk's office of the Bartholomew Circuit Court, in this State, to Joseph D. Sidener.

On the 27th day of September, 1862, the appellees commenced proceedings in attachment against said Anderson, in which they obtained judgment; and, without ascertaining that the record thereof had been signed by the judge, caused the clerk to issue executions thereon, on which the sheriff, on the day of February, 1863, sold the land, previously sold by him to Sidener, to the appellees, the plaintiffs in the attachment proceedings.

On the title acquired by and through said attachment sale and purchase, on the 27th day of April, 1863, the appellees commenced a suit to quiet said title, by causing to be set aside, as fraudulent, the said sheriff's sale to Sidener. They failed in the suit, one of the grounds of said failure being, that the title on which they rested their right to bring their suit was worthless. It was necessary that the plaintiff's should show some interest in the land of Anderson, to enable them to sue to set aside conveyances of it to Sidener. The interest-the title alleged in this second suitoriginated thus:

On the 19th day of November, 1868, seven years after the sale to Sidener was made, the appellees severally obtained confession of judgment by said Anderson, on their attachment claims, on executions upon which, on the 13th day of February, 1869, the sheriff'sold the land to appellees, which he had sold, as aforesaid, to appellant Sidener, on the 19th day of October, 1861.

On the 24th day of February, 1862, Anderson executed a deed to Sidener for the land which the latter had purchased