Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1901-06-22

petent witness for the purpose of au,hen-
ticating his books, and testifying to the
correctness of the transactions therein
contained. Section 379 of our Practice
Act, supra. has been repeatedly chang
ed by amendment. At this stime and at
the time of this trial, that part Of the sec
ton material to the question presented is
as follows: mo person shall be allowed
to testify under the provisions of Sec
tons 376 and 81 when the other party to
the transaction is dead, or when the op-
posite party to the action, or the person
for whose immediate benefit the action
or proceeding is prosecuted or defended
is the representative of deceased person
when the facts to be proven transpired
before the death of such deceased person,
y" Com. Laws, Sec. 3474.
The principal issue made by the plead
ings involved the existence Of the par
tnership. The appellant alleged the ex-
istence of the partnership and the respon-
dent denied it. The appellant was not
seeking an accounting and there was no
question involving partnership accounts.
He was seeking to establish the existence
of the alleged partnership, that he might
recover the possession of the partnership
property as the surviving member of the
firm. While co-partnership books might
be competent for the purpose of estab-
fishing the existence Of partnership,
these books were not claimed in the rec
ord to be partnership books. 1t was not
admitted or otherwise shown that they
were partnership books. In fact, the Of
fer discloses that they were kept by the
appellant and contained the transaction
of his individual mercantile business,
and the co-partnership milling business.
If the record of transactions with the de-
ceased in his lifetime, entered by the APP
pellant in these books, was competent
for the purpose of establishing the exis-
tence of a partnership, when authenti-
Gated by the oath of the appellant, then
why was not appellant competent to tes-
tify directly to the transactions without
regard to the books? If he could by his
testimony render the transactions shown
10y the books material to the ISSUE then
he was competent to testify in this ac
ton to the transactions had with Stock ir
the statute, we can see no reason why h.
would not be competent to testify to the
terms and conditions of the agreement O
oG-rortnerShip. 1t seems to us that thu
y ain language of the statute quoted
closed the mouth of the appellant a.
death had sealed the lips of Stock TIL,
.. appellant has cited a mum Der of cases de
cided by this court in support of his con
tent!on, but an examination of thos,
cases shows that they can have no appli
cation to the facts of this case. In tn
case of Buckley V. Buckley, Administra
trix, II New. 40 and l6 New. $50, cited a
. an authority in support of appellant
= contention, no such question as the on
! presented by this record was presente,
and decided. That case was brought b,
=, the appellant to recover the possession Q
certain sheep of which he alleged he wa
the owner The respondent was the sur
=. viving widow, as in this case, and the AID
. ministratrix of her deceased husband
= estate. She claimed, among other maj
= tiers, that the sheep belonged to her de
:, ceased husband, and that she held Their
= as Administrative of his estate as a pal
- thereof. 1t appears that the books {
Henry A. Buckley, the deceased HUSBAND
: were offered for purpose after the re
:, spondent his widow and legal represer
. tative, had testified to their CORRECTNESS
The competency of the widow to testif
:. to the correctness Of the book, or to an
other fact under the statute, was neitht
. presented nor decided by the court.
The case of Jones, Administrator,
Gammans, IL New. 249 is not in point. !
that case Jones, the Administrato
. sought to recover judgment again
Gammans upon an account for service
=. etc. Gammans by answer pleade
- among other matters. counter claim.
the trial Gammans offered his books
account in support of some of the item
-. of his counterclaim, and supported Il
.a books by his own testimony. One of Il
- objections made to the book was tn
:, GammaDs could not testify to this M
ter after the death of the Administrator
intestate, and was in effect permitti1
Gammans to testify to matters viii
No transpired between him and the deceas
before death. and in the lifetime of t
deceased. The objection made preser
r the question in the case at bar, but t
court did not and was not required
pass upon the objection. 1t appears tt
the trial court did not rule upon the
NV lection at the time it was made, but
" served its ruling and afterward annou
'p' ed as one of its findings, that the DO
~ had been improperly kept and that it
- peared from the book itself that it v
'Ao not a proper book to be admitted
's showing the state of the accounts
tween Gammans and the deceased, a
~" for these reasons excluded it. On the
peal the respondent abandoned his
%" lection based upon the competency
Gammans, and sought to sustain the
' ~, ton of the trial court for the reas
given by it in the findings. Jus1
'.u Beatty discussing the matter says:
must stand or fall upon the correctn
or incorrectness of the ruling as it
VI originally made and annonpcod ord