Craft v. Jackson

4 Ga. 360

• Court: Supreme Court of Georgia
• Decided: March 15, 1848
• Docket: No. 40
• Status: Published

Opinion

By the Court.

Warner, J.

delivering the opinion.

[1.] The first exception taken to the decision of the Courtbelow,in this case, is, the rejection of the testimony of Daniel Craft, junior, taken, by commission. It appears, from the certificate of the presiding Judge, that the commission issued to take the testimony of a witness who resided out of the county; but at the time the interrogatories were answered, executed, and returned into Court, and at the time the commission bears date, the witness resided in the county in which the suit was pending. At the time the commission issued, which was the authority to take the deposition of the witness, he resided in the county in which the suit was pending, and could have been subpoenaed. If the witness was going out of the State, or removing out of the county, or his official or other business would have required his absence from the county at the term of the Court at which the cause was to have been tried, then the application for a commission to take the testimony of the witness by interrogatories, should have been made according to the provisions of the Act of 28th Dec. 1838. Hotchkiss’ Dig. 585.

The taking testimony in civil causes, to be read on the trial, can only be taken in such manner, and under such circumstances as the Legislature have prescribed, and the particular circumstances under which the party seeks to take the deposition of the witness, should be stated, so that it may appear to the Court the deposition of the witness is authorized to be read in evidence under the law, so as to dispense with his personal examination in Court, which is always to be preferred when it can be done. We concur in opinion with the Court below, that it would be a dangerous practice, to create exceptions in favor of the introduction of testimony by interrogatories and commission, beyond those which the Legislature have thought proper to create, and think the testimony was properly rejected on the trial.

[2.] We have carefully examined the other grounds of error taken for a new trial, as certified by the presiding Judge, together with his charge to the jury, as contained in the record before us, and the evidence; all of which, to our minds, do not furnish any legal ground for a new trial. The law of the case, as well as the facts, appear to have been fairly submitted to tbe jury by the Court below:

And the judgment of that Court is therefore affirmed.