Ex parte Jenks

101 Ala. 429

• Court: Supreme Court of Alabama
• Decided: November 15, 1893
• Status: Published

Opinion

HEAD, J.

We have no doubt that section 2813 of the Code means to include females, residing in the county, whose depositions have been taken, as authorized by section 2801, in the class of witnesses whose personal attendance the court is authorized to require, upon the prescribed affidavit being made that such personal attendance is necessary. It is true that the depositions of persons residing in the county, other than females, taken in pursuance of said section 2801, are by force of section 2812, rendered da bena esse only, and can not be used if the statutory causes for which they were taken do not exist at the time of the trial, unless the witness be then dead, of unsound mind, or resides more than one hundred miles from the place of trial; while, so far as that section (2812) provides, the de£)osition of a female, though residing in the county and able to attend the trial, may be used. So far, it is the declared policy of the law that females shall not be required to attend the trial, but shall give their testimony by deposition. But section 2813 takes a step beyond, and engrafts an exception upon this general policy, which is, that if affidavit be made that the personal attendance of the witness, residing in the county, is necessary, then such attendance shall be required. In this provision there is no exception of females expressly made, and no good reason for holding that one was implied. The law considers the prescribed affidavit sufficient evidencé that the personal attendance of the witness is necessary to the ends of justice ; and that necessity may as well exist in case of a female as a male witness.

Application for mandamus denied.