Cox v. Cox

2 Port. 533

• Court: Supreme Court of Alabama
• Decided: June 15, 1835
• Status: Published

Opinion

By Mr. Justice Hitchcock :

This was an action of assumpsit, brought by the defendant in error against the plaintiffs in error, as partners, for goods sold and d elivered. The writ was served upon H. and J. H. Lewis, and returned not found, as to Cox. The declaration is' against them all: they all pleaded jointly, non-assumpsit, &c. and a verdict and judgment were liad against them in the Court below.

At the trial at bar, the deposition of William B. Scruggs was read by the plaintiff, to which exception was taken by the defendants, on the ground, that notice of the time and place of taking the same, was served only on one of the defendants, J. H. Lewis.

It appears that in the affidavit, upon which the commission for taking this deposition issued, the plaintiff stated that the witness was then about to leave the State for the benefit’ of his health, and that all the defendants except J. H. Lewis, were then absent from the State. The Judge directed a commission to issue to take the deposition of Scruggs, upon the plaintiff’s giving J. H. Lewis five days notice of the time and place of taking the same, which was done, and the bill of exceptions shews, that Scruggs died soon after the deposition was taken, which was in February, 1829. The writ wras returnable in October, 1828. The pleadings were made up at the return term, and it was admitted that the firm of the defendants below, was dissolved in 1826.

By our statute, the deposition of a witness, who is about to leave the State, may be taken by the Judge where the cause is pending, provided sufficient notice of the time and place of such application has been given to the opposite party — “ or said Judge may order the Clerk of the Court to issue a commission to one or more persons to take the deposition of such witness, such notice being first given to the adoerse party, of the time and place, when and where, such deposition is to be taken, as the Judge awarding the same, shall direct.”

All depositions are taken de bene esse, and can not be read at all, if at the time of trial, the personal attendance of the witness can be had. But to prevent a failure of justice, the statute has authorised depositions to be taken in certain specified cases, leaving it to the Judge to prescribe the notice which shall be given to the adverse 'party. In this case, it appears, that the defendants were sued upon a partnership contract; that they had pleaded jointly ; that two of the defendants were out of the State, so that no notice could be served upon them ; and that the witness who was then about to leave the State, for the benefit of his health, died shortly after the deposition was taken.

Under these circumstances, we think the notice, as served, was sufficient. It being a partnership debt, the defence being joint, all were liable or none. It was not like the case of an action founded in tort when judgment might be had against one or more, and when the defence might be separate, or when it might conflict one with the other.

The expression adverse party is a collective term, arid does not necessarily imply a separate notice to each defendant; ■ and we may intend that notice to one is notice to all. We think it analagous to our statute, which authorises service of á writ to be made upon one or more partners, and declares that,; to be service upon all. The dissolution of the firm before suit brought, does not vary the case. The dé-efendants being originally, if at all, jointly liable, no subsequent arrangement between the partners ought to change the remedy of the plaintiffs. In cases of protests of bills of exchange, notice to one partner, will bind all, though after dissolution.

a

After the reading of the above deposition, the plaintiff read the separate answers of the defendants to a bill filed by the plaintiff during the pendency of the suit, for a discovery of testimony to aid him in the trial at law. In these answers, Cox admitted the facts charged in the bill. Hickman Lewis stated his ignorance of the facts; and John H. Lewis denied them. The answers were all read, without any objections on the part of the defendants.

The plaintiff then offered to read the depositions of D. J. Hines, and William H. Wilkinson, taken after the answers had been filed, both of which were object ed to, on the grounds,

1. That the deposition of Wilkinson, was taken-within this State, though it was applied for on the ground that he were a non resident; and,

2. That the plaintiff having read, and relied upon the answers in Chancery, of the defendants, w;as thereby precluded from taking and relying upon testimony, on the points to which discovery was sought by the bill, and which was denied by the answers.

The Court overruled these objections, admitted the testimony, and instructed the jury, that they were “ to take into consideration as well the depositions as the answers, in coming to a decision of the case.”

As to the first objection, it is sufficient to remark, that it is immaterial where the deposition was taken: the witness being a resident of another State, entitled the plaintiff to the benefit of his testimony on interrogatories; and if the witness was temporarily here, and the requisites of the statute were complied with, in filing the interrogatories, and giving the defendant an opportunity to file cross interrogatories, the commissioner had the right -to select his own time and place, where he would execute the commis. sion, and could do it as well within this State, as out of it.

Nor is there any force in the second objection.

When a party files his bill for discovery and relief, and the ground of equity jurisdiction is predicated solely upon the necessity of going into Chancery for discovery; if that fails, the bill must be dismissed; no testimony aliunde being allowed purely iii aid of the jurisdiction of the Court.a But when a bill is filed for discovery of testimony, in aid of a trial at Common Law, the party may either use the answers, or not, as he chooses, and if used, it stands upon no other or higher grounds than other testimony, and any other evidence not inconsistent with the issue, may be introduced, whether it contradicts the answer or not, and the jury will weigh the whole evidence, as in other cases.b

The judgment must be affirmed.

Mr. Justice Thornton, not sitting in this case.

15 Ves. 226. Gow, 312.

3 Bibb, 303.

Peak’s Ev.58 3 Littell, 379.