Winner v. Brandon

Mississippi Supreme Court October 15, 1903

Winner v. Brandon, 82 Miss. 767 (Miss. 1903)

Calhoon

Opinion of the Court

Calhoon, J.,

delivered the opinion of the court.

We think there was error in admitting oral testimony without an agreement “in writing” that it might be offered, or a “notice to that effect” filed in the cause. We had occasion to *770carefully examine Code 1892, sec. 1764, in Dickerson v. Askew, Ante, 436; s. c., 34 South., 157, in the light of the history of the law previous and subsequent to the Constitution of 1869, and held in that case that the section was restrictive, and not enlarging, so far as notice or agreement is concerned, and that notice or agreement in writing is now necessary even in matters which would have been of probate court jurisdiction under the law existing before that constitution. Objection to the oral evidence was promptly made when offered, and exception taken to its being overruled.

Reversed and remanded.

Reference

Full Case Name: Maurice Winner v. John Brandon, Administrator
Status: Published
Syllabus: 1. Chancery Court. Oral testimony. Notice. Agreement. Code 1892, 11764. In the absence of notice or agreement oral testimony is not admissible in the chancery court in a proceeding by an administrator to require the delivery of personal property to him, under Code 1892, § 1764, providing for the examination of witnesses in open court under certain conditions. 2. Same. Probate cov/rt jv/risdiction. The Code section, Cbde 1892, § 1764, is restrictive and not enlarging, and requires a notice or agreement in writing in matters which were of probate court jurisdiction before the adoption of the Constitution of 1869.