¶1The plaintiff in this case called and examined as a witness in his own behalf Henry Jergeus, the next friend (or guardian) of the infant plaintiff, by whom he appeared to prosecute his suit. It is conceded by counsel, that according to the law as it existed before the enactment of our code of procedure, the witness was incompetent, being a party to the record. We find nothing in the code which alters this rule. True it is, that mere interest does not disqualify, but this rule is expressly limited to persons not parties to the suit.
¶2It is urged that this court are required to give judgment without regard to technical errors or defects not affecting the merits; that the plaintiff gave . evidence quite sufficient to sustain the judgment, which was not contradicted, and which was free from objection, and therefore we may strike out the testimony of Jergeus, and still affirm the judgment.
¶3But the testimony of the witness does affect the merits— it went directly to establish the plaintiff’s claim—it proved the period of the service for which the action was brought, and *412the value of those services. The error of the court below was, therefore, not a technical error merely.
¶4To determine whether the error was technical or not, we are not to inquire how far the mind of the justice was or was not affected by it; or whether he would not have found the same facts upon the evidence of the other witnesses. If the evidence, erroneously admitted, tended directly to establish the merits of the plaintiff’s case, the objection was not a technical one.
¶5We feel reluctant to disturb the judgment. The proofs would, without the objectionable testimony, sustain a recovery. We find no other error in the proceedings; but we feel constrained, by our regard for the safe administration of justice, to give effect to the appellant’s exception. On a further trial the rights of the parties will no doubt be protected.
¶6The judgment must be reversed, and, as we have no discretion in such cases, it must be reversed with costs.
¶7Judgment reversed with costs.