Bigoney v. Stewart

68 Pa. 318

• Court: Supreme Court of Pennsylvania
• Decided: May 8, 1871
• Status: Published

Opinion

The opinion of the court was delivered,

by Thompson, C. J.

Unless the mode and manner of executing rules of court be defined in the rules themselves, or by an Act of Assembly, it necessarily becomes the duty of the court to determine the sufficiency of the execution of them. In doing this, “ we rely greatly,” as my brother Agnew said, in Fleming v. Beck, 12 Wright 309, “ upon the interpretation of the court 'below of its own rules.”

The execution of the rule to take depositions in this ease was held by the learned court below, in respect to the objection that the witnesses were not kept for cross-examination until the last moment of time fixed in the rules, rightly decided. The time fixed for taking the testimony was between the hours of 8 o’clock A. M. and 11 o’clock p. M., and the justice, in certifying to the execution of the rule, states that the depositions were closed at half past 8 o’clock P. M., of the day fixed, and no one appearing up to that time to cross-examine, “ the witnesses and myself retired from the place of examination, and I did not go back that night.”

The learned judge exercised his judgment that this afforded ample time to the opposite party to appear and cross-examine, if ■he meant to do so. And certainly it was, on any reasonable calculation. A reasonable time must always be given the opposite party for that purpose. If not, the testimony should be rejected, if the party appeared in such reasonable time and found the depositions closed and the party and his witnesses gone. But this was not the case here. There was therefore no error in admitting the testimony taken on the rule. As to the special exceptions to the reading of certain portions of the depositions of the witnesses, we regard the portions objected to as entirely immaterial to the issue, and we need not further discuss them.

Judgment affirmed.