Broadnax v. Sullivan

29 Ala. 320

• Court: Supreme Court of Alabama
• Decided: June 15, 1856
• Status: Published

Opinion

WALKER, J.

When the deposition of a witness has been taken a second time, by the same party, in a suit at law, without'an order of court, it is not error to allow the second deposition to be read in evidence by the party taking it, because its' admission or rejection is discretionary with the court. — 4 Ala. 509 ; 16 Ala. 581.

2. The omission of a commissioner to show, in the formal certificate, that the witness was sworn, is no ground for suppressing the deposition, when the commissioner shows, in the preamble to the deposition, that the witness was by him cautioned and sworn to speak the truth, the whole truth, and nothing but the truth, in answer to the interrogatories.

The statute found in the Code, in reference to the mode of taking depositions, does not apply to cases pending before its adoption, (Hiscox v. Hendree, 27 Ala. 216); and whatever may be the rule in cases to which the Code applies, it is no objection to a deposition in this case, which was commenced in 1852, that the commissioner does not certify that the witness was known to him.

There is no error in the record, and the judgment of the court below is affirmed.