McNew's Executors v. Rogers

1 Thompson 32, 1 Shan. Cas. 17

• Court: Tennessee Supreme Court
• Decided: September 15, 1848
• Status: Published

Opinion

Gums, J.,

' delivered the opinion of the Court:

1. The order of 1845 was revived by the express words of the order of 1847, and therefore the depositions of J. C. Petre and Alvis Kincaid were taken in pursuance of an order of Court. The argument that the order of January, 1847, revived only the special orders made in the cause, and did not apply to the general order of January, 1845, is not satisfactory. But it is said there was no notice shown. When it appears that the party attended and cross-examined the witnesses, it is not necessary to show a notice to take the depositions.

(1) Upon both these grounds the depositions of Petre and Kincaid were improperly rejected.

2. The depositions of White, --and Garnett were properly rejected. A notice to take depositions on one of two days will not authorize the party to take them on the last day, unless he commenced on the first and continued over until the second.

Supplemental opinion. The court knows of no practice in the Circuit Court that prohibits a party from taking the deposition of the same witness more than once. But if such were the practice, an abortive attempt to take the deposition would not be a ground for excluding one subsequently taken. (2)

Judgment reversed and cause remanded for a new trial.

Bedford v. Ingram, 6 Hay. 155, 164.

Foster v. Smith, 2 Cold. 474, 484.