Lyon v. Ely

24 Conn. 507

• Court: Supreme Court of Connecticut
• Decided: February 15, 1856
• Status: Published

Opinion

Storrs, J.

The only question in this case respects the admissibility of the deposition, objected to by the defendants on the trial.

It appears that the deposition was taken by a notary public, in the county of Placer, in the state of California; and the defendants have claimed before us that it was inadmissible, on the ground that he had no power, by the laws of that state, to exercise his office in that county. No facts, in regard to the power of that officer under those laws, are presented to us, by the superior court, on this motion. If this point were properly before us, we are not satisfied, by the reference which has been made to those laws, that the notary had not a right to act as such, in that county. But the deposition was objected to, on the trial, upon other grounds, and this question was not there made. It, therefore, cannot be considered by us. By our rules, we confine ourselves, on motions for a new trial, to the questions made below; and one of the principal reasons on. which that rule is founded, viz: that a claim, or objection, if it had been made on the trial, might have been obviated, applies fully to this case. It must, therefore, be assumed that the notary had authority to act where the deposition was taken. The only other question made before us, is, whether it sufficiently appeared that the defendants were notified of the time and place of taking it. The import of the certificate of the notary, although it is elliptically expressed, is, according to the effect which our courts have always given to such certificates, sufficient evidence, in the first instance, of the fact of such notice, open, however, to contradiction. That evidence was met by the defendants, on the trial, by proof that they received no other express'notice than that the deposition would be taken at the place, and time, which was designated in the original notice, for that purpose. It was taken at a subsequent day, and at another place. That proof rebutted the evidence furnished by the certificate, unless it ought to be inferred, from the latter, that the taking of the deposition was adjourned to the time and place at which it was taken; in which case there would be no contrariety between such proof and the certificate. It was clearly competent for the notary to adjourn the taking of the deposition, nor do we perceive any objection to his adjourning it to a different place than that originally designated for that purpose; and if he did so, the defendants, who were a party to the proceeding, and had had notice to be present, would be deemed to be cognizant of such adjournment, and the notary might well certify, as he has done, that they were notified of the time and place at which the deposition was taken. The judge below adopted the inference that there was such an adjournment; and in this was, in our opinion, correct. The defendants were notified of the time and place originally appointed for the taking of the deposition. It was taken at a subsequent time, and at another place, of both of which the notary states, in his certificate, that the defendants were duly notified. On the supposition that he had adjourned the proceeding, that certificate is true; on any other it would be false. Under these circumstances, we think that it was the duty of the judge below to give such a construction to the certificate, if it would fairly admit of it, as to reconcile it with the evidence that had been adduced. Such a construction did no violence to the language of the certificate, but was compatible with it. As it is apparent in this case, from the certificate of the notary, that he was aware of the necessity of a notice to the defendants, of the time and place of taking the deposition, it would be an imputation upon him of gross impropriety, if the construction of his certificate, claimed by the defendants, were to prevail; and we think that it would be unreasonable to give it such a construction. A certificate of this character is not required to be made with all the particularity and technicality of entries of judicial proceedings, and is to receive only a fair and reasonable construction. There is no improbability in supposing, what indeed is not unfrequently the case, that the absence of the witness from the place originally designated for the taking of the deposition, or his residence elsewhere, rendered an adjournment convenient, or necessary. Indeed, from what appeared, we think it was fair to presume that such was the case. If it had appeared that the witness was at Sacramento, at the time originally fixed, the case would be different, and it might be proper to require more explicit proof of an adjournment. But, in the absence of any evidence on the subject, it is much more probable that the plaintiff was mistaken as to the place where the witness then resided, and that the proceeding was adjourned in consequence of it, than that the notary should have abandoned the taking of the deposition under the original notice, and proceeded to take it de novo; especially as it was taken but a very few days after the time first fixed, and there was no opportunity to confer anew with the plaintiff.

We therefore do not advise a new trial.

In this opinion, Hinman, J., concurred. Ellsworth, J., dissented.