Collins v. Fowler

4 Ala. 647

• Court: Supreme Court of Alabama
• Decided: January 15, 1843
• Status: Published

Opinion

ORMOND, J.

We are of opinion that the jury might have inferred, that the letter appended to the deposition was: the one spoken of by the witness. The question, however, is entirely unimportant, as the same fact was proved not only by the admission of the defendant, but by proof that the note was in her hand-writing.

The certificate of a commissioner authorized to take a deposition, setting forth the time'and place and circumstances under which it is taken, is prima facie evidence of the facts therein stated.

■ The certificate in this case showed that the deposition was not taken on the day the opposite party was notified to appear, and as she did not attend and cross examine, there was no authority for reading it as evidence. To surmount this objection a witness was introduced who proved that he received the deposition from the commissioner on the first day of November, but did not know when the deposition was in fact taken.

This testimony shows that it was not taken on the second of November, but it does not prove that it was taken on the first. There was therefore no proof when it was taken, and for that cause it should have been rejected.

There was also error in permitting the witness, Soles, to testify to the charges for professional services made by the plaintiff against him. The object was doubtless to show that the charge made in this case, was what was usual and customary for physicians to charge for services in like cases. But this could not be established by proving what the plaintiff had charged another person, as the question would still return, whether that charge was reasonable, and according to the usage and practice of physicians in the neighborhood.

The judgment must therefore be reversed and the cause remanded.