Lutcher v. United States

72 F. 968, 19 C.C.A. 259, 1896 U.S. App. LEXIS 1765

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 17, 1896
• Docket: No. 394
• Status: Published

Opinion

PARDEE, Circuit Judge

(after stating tiie case as above). The paper permitted to be read in evidence on the trial is so deficient in all the forms and requisites that it cannot be properly called a “deposition" or even an “affidavit.” It does not show any notice of the fairing; that the statements were taken before any officer; that the persons making the statements wen* sworn. The statements bear no date or venue, arid are accompanied by no certificate. The trial court appears to have admitted the statements contained in the paper to he read in evidence because they had been placed in the files of the case, had not been objected to before the parties announced ready for trial, and because of the agreement made between counsel for tíie United States and Lutcher & Moore in certain 15 cases between the same parties pending in the United States circuit and district courts in the Eastern district of Texas, to the effect that neither party at the trial would take any objection to the form of taking testimony in any of said cases hv the other de bene esse, under sections 863 and 864, Rev. St. U. S. This agreement is practically to the same effect as the statute regulating the practice in common-law cases in the courts of the state of Texas, as follows: “Objections to the form or manner of taking a deposition cannot be heard unless such objections are in writing, and notice thereof is given to the opposite counsel before the trial of suit commences.” In our opinion, the agreement of counsel should be given no broader effect. The agreement was made to apply to some 15 cases pending in the courts of Galveston, in which cases, and even in this one, there were depositions on file, and the agreement is dated the next day after the alleged paper was filed in the present case; and we are therefore justified in assuming that the agreement was not specially made in reference to the paper in question, even if counsel for defendants knew that such extraordinary document was on the files. The statute of Texas above quoted is construed in the courts of Texas as applying to objections which do not go to the competency of the witnesses or the relevancy of the evidence offered. Railway Co. v. Van Alstyne, 56 Tex. 450. A deposition is “the testimony of a witness put or taken down in writing under oath or affirmation, before a commissioner, examiner, or other judicial officer, in answer to interrogatories and cross interrogatories, and usually subscribed by the witness. 3 Bl. Comm. 449; Tidd, Prac. 810, 811.” Burrill, Law Dict. verbo “Deposition.’’ “In procedure, ‘depositions,’ in the most general sense of the word, are the written statements under oath of a witness in a judicial proceeding.” Eap. & L. Law Dict. verbo “Deposition.” ‘“Deposition’ is a generic expression, embracing all written evidence verified by oath, and thus includes affidavits.” Stimpson v. Brooks, 3 Blatchf. 456, Fed. Cas. No. 13,454. Definitions and authorities to this purport may be multiplied indefinitely. We conclude that a statement of facts in writing, without date or venue, purporting to have been signed by a witness, but giving neither age nor residence of such witness, which statement is not shown to have been made under oath, nor the oath waived, nor to have been taken on notice or in the presence of parties, nor to have been taken before any official authorized to administer oaths, and which is not accompanied by a certificate of a competent official, from which compliance with any of the requisites for the taking of depositions in judicial proceedings can be inferred, is not a deposition, although so labeled and filed in a suit pending in court.

' It follows that, in our opinion, the court erred in admitting the paper in question in evidence over the objections of the defendants. As this necessitates a reversal of the case, the other assignments of error need be considered only to remark that the bills of exception relating to them are informally drawn, and would be dangerous as precedents. The judgment of the circuit court is reversed, and the cause is remanded, with instructions to award a venire de novo.