#### Witte v. Koeppen.

1. Comp. Lftws, § 5260, provides that no person shall be excluded as a witness, except (subdivision 2) that, in actions by or against executors, etc., neither party shall be allowed to testify against the other as to any transaction with, or statement of, deceased, etc. *Held,*that the word “party” is used technically, and it does not disqualify a witness that he is interested in the result.

2. A verdict on conflicting evidence will not be disturbed on appeal.

(Opinion filed June 26, 1899.)

Appeal from circuit court, Minnehaha cóunty. Hon. Joseph W. Jones, Judge.

Action by Christian F. H. Witte against Albert C. Koeppen, as administrator of the estate of C. F. H. Koeppen, deceased, to recover a money judgment. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

Affirmed.

The facts are stated in the opinion.

*Davis, Lyon & Gates,*for appellant.

The testimony of the witness Christian Koeppen was incompetent. He was the original owner of the claim in suit and the fact that he assigned the claim will not bring his testimony out of the bar of the statute that prohibits either party to an action against an administrator testifying against the other as to any transaction with or statement by an intestate, unless called to testify thereto by the opposite party. And. Law Diet. 357; § 5260 Comp. Laws; Bank v. McDonnell, 6 So. 704; Pinney v. Orth, 88 N. Y. 452; Hutchinson v. Cleary, 55 N. W. 751; Gilman v. Baker, 41 Pac. 124; Buck v Patterson, 42 N. W. 949; Magenan v. Bell, 13 N. W. 277; Drew v. Simmons, 58 Ala. 463; *599Sublet v. Hodges, 88 Ala. 493; Goodlet v. Kelley, 74 Ala. 213; Texas v. Chiles, 21 Wall. 488; Manning w. Clark, 40 Fed. 124; Eslava v. Mazange, 1 Woods, 638.

*Keith & Warren,*for respondent.

The testimony of the witness Koeppen was admissible, he not being a party to this action. McRea v. Holcomb, 46 Ark. 310; Stanley v. Wilkerson, 39 S. W. 6043; Bunker v. Taylor, 74 N. W. 450; Chadwick v. Cornish, IN. W. 55; Crimmins v. Crimmins, 10 Ail. 800; Vossv. King, 10 S. E. 402; Johnson v. Johnson, 3 N. W. 661; Bellows v. Litchfield, 48 N. W. 1062; Cahalan v. Cahalan, 48 N. W. 724; Parker v. Maxwell, 53 N. W. 754; Lobdell v. Lobdell, 36 N. Y. 327; Cary v. White, 59 N. Y. 339; Grange Warehouse Association v. Owen, 7 S. W. 457; McBrien v. Martin, 9 S. W. 201; St. John v. Lofland, 64 N. W. 930; Potter v. Bank, 102 U. S. 163; Berry v. Sawyer, 19 Fed. 286; Snyder v. Fielder, 139 U. S. 478; Monongahela Bank v. Jacobus, 109 U. S. 275; Grange Warehouse Association v. Owen, 7 S. W. 457; McBrien v. Martin, 9 S. W. 201.

Corson, P. J.

This is an action by the plaintiff, as assignee of Christian F. Koeppen, to recover of the defendant, as the administrator o‘f the estate of Christian F. H. Koeppen, deceased, the sum of §8,000. The plaintiff recovered judgment for the sum of §3,700, and from this judgment and order denying a new trial the defendant appealed to this court. Christian F. Koeppen, the assignor of plaintiff/ was the father of Christian F. H. Koeppen, deceased.,' and claims to have intrusted to his son, in his lifetime, the sum of §8,000, to be invested by him in the name of him, the said Christian F. Koeppen, during the years 1891 to 1895, inclusive. In March 1898, soon after *600the death of his said son, the said Christian F. Koeppen duly made out his claim and account for said moneys so claimed to have been intrusted to the care of his son, and on the same day, by an instrument in writing, assigned said claim and account to the plaintiff in this action, who thereupon brought this action to recover the amount so claimed to be due. The father, Christian F. Koeppen, took no written evidence from his son of the moneys so claimed to have been intrusted to him, except as to the sum of $1,000, which was allowed by the administrator, and is not the subject of controversy in this action. On the trial, Christian F. Koeppen, plaintiff’s assignor, was called as a witness on behalf of the plaintiff. His evidence as to the delivery of certain sums of money to his son was objected to on the ground, among others, “that the witness is not competent to testify as to any transaction had or any conversation with the intestate or statement by the intesrate; and for the further reason that it appears from the testimony that the witness is a party in interest in this suit, and that it is prosecuted in his behalf, and that the same rules of testimony apply as if he were a party to the suit; and for the further reason that the witness, by assigning his claim to the plaintiff, cannot make himself competent to testify, for the reason'that he would be incompetent to testify if he had brought this suit himself.” It is quite clear that, had Christian F. Koeppen been the plaintiff in this action, his testimony would have been inadmissible, under the provisions of Section-5260, Comp. Laws. And the important question is presented as to whether or not, having assigned his claim to Witte, the party plaintiff, he is competent to testify as to transactions between himself and deceased in this action. Comp. Laws, § 5260, [provides: “That no per*601son offered as a witness in an action * * * shall be excluded * . * * except as hereinafter provided.”. The second exception found in Subdivision 2 of the section is the one applicable to this case, and reads as follows: “In civil actions or proceedings by or against executors, administrators, heirs at law, or next of kin, in which judgment may be rendered or order entered, for or against them, neither party shall be allowed to testify against the other, as to any transaction whatever with, or statement by, the testator or intestate, unless called to testify thereto by. the opposite party.” It will be observed that by the first clause of the section no person offered as a witness shall be excluded, except as therein provided, and that by the exception it is only the parties who are excluded from testifying in the action; that is, ‘ ‘neither party shall be allowed to testify against the other.” While it is conceded by appellant that the witness was not technically a party, he'insists that he is beneficially interested, and comes within the spirit of the statute excluding a party from being, a witness. This court held in Bunker v. Taylor, 10 S. D. 526, 74 N. W. 450, following the decision of the supreme court of the United States in Potter v. Bank, 102 U. S. 163, that the witnesses excluded by the proviso are those only who are technically parties to the issues to be tried, ^nd do not include those who are not parties, though they have an interest in the result of the issue. It seems to be well settled that when the enacting clause is general in its language and objects, and a proviso is afterwards introduced, such proviso should be construed strictly, and takes no case out of the enacting clause which does not fall fairly within its terms; and those who set up such exception must establish it as being within the words, as well as within the reason thereof. *602U. S. v. Dickson, 15 Pet. 141; McRae v. Holcomb, 46 Ark. 306; Snyder v. Fiedler, 139 U. S. 478, 11 Sup. Ct. 583. Substantially the same rule is laid down in Lobdell v. Lobdell, 36 N. Y. 327. In that case the court of appeals of New York said: “Although it may be said that a party standing in the relation in which he does ought to have been excluded, for he has the same advantage over the plaintiff, as a witness, as his father would have had if living, and standing as defendant, still, unless the section can be construed so as to exclude him, the legislature, and not the court, must rectify the omission., It will not suffice to say that the case is within the spirit of the enactment, unless a fair construction of the enactment will bring it within the enactment itself. The subject of the enactment is allowance of the parties to be witnesses in their behalf, and the object is to provide generally for their examination as witnesses, ■ and, the specific exception to such examination the legislature having undertaken to provide, the courts cannot allow any that are not specified by the legislature.” Crimmins v. Crimmins (N. J. Ch.) 10 Atl. 800; Voss v. King (W. Va.) 10 S. E. 402; St. John v. Lofland, 5 N. D. 140, 64 N. W. 930. And, so far as our researches have extended, we find that, in states having a statute similar to our own, the exception has been limited to parties to the record. Berry v. Sawyer, 19 Fed. 286; Stanley v. Wilkerson (Ark.) 39 S. W. 1043. See, also, cases heretofore cited. This court is not at liberty to disregard the plain and express terms of the statute upon any theory as to its spirit, or what it ought or that the legislature might have intended it to be, when the statute is plain and unambiguous, as courts are •not permitted to search for its meaning beyond the statute itself. Cooley, Const. Lim. 5457. The able argument of counsel *603for the appellant, in which ¿hey contend that, as Christian F. Koeppen was interested in the result of this suit, as they claim, he should have been excluded as a witness, would be more properly addressed to the legislature than to this court. We are clearly of the opinion, therefore, that the learned circuit court correctly overruled the defendant’s objection to the testimony offered.

It is further contended on the part of- appellant that the evidence offered by plaintiff was insufficient to justify the verdict. We are of the opinion, however, after a careful review of the evidence, that it is sufficient to’justify the verdict of the jury. In Jeansch v. Lewis, 1 S. D. 609, 42 N. W. 128, this court held that “where, in a case tried before a jury, the evidence is conflicting, this court will not weigh the evidence, or go further than to determine therefrom whether or not the party has given sufficient legal evidence to sustain his verdict, without regard to the evidence given on the part of the other party, except so far as such evidence tends to sustain his case. ” The case under consideration comes within the rule laid down. The judgment of the court below and order denying a new trial are affirmed.