Strayer v. Wilson

7 N.W. 7, 54 Iowa 565

• Court: Supreme Court of Iowa
• Decided: October 19, 1880
• Status: Published

Opinion

Seevers, J.

„ - . ereorS!umira¿ of witness. At the instance of the plaintiff a commission ivas issued to take the depositions of certain persons residing in the State of Indiana. ■ They were name<l in the commission as follows: James Willis, Henry Dunsmore, Ellin Duffiéld, Henry Gibson, Joseph Clark, Alexander Robsen, and' Mahalde Eliiott. Under such, commission the depositions of the follow-named persons were taken: William P. Smith, James Millis; Ellen Duffield, ITarrey Gipson, Henry O. Dunsmore, Mahal Elliott, Alexander M. Robrtson, and Joseph C.'Clark.

The defendants moved the court to suppi*ess the. depositions of the last named persons on the ground the officer had no power or authority to take the same, and no notice the same would be taken had been served on the defendants. The motion was overruled.

The statute provides that before a commission can issue to take the deposition of a witness reasonable notice must be given'the adverse party when the commission will be sued out to take the deposition of the witness, “naming him.” Code, § 3727; and in § 3730 what is reasonable notice is defined. Thereupon the commission issues, which is accompanied with the interrogatories and cross-interrogatories to be propounded to the witnesses named in the notice, and whose names should be set out in the commission, or in some other manner sufficiently identified. The commission is based upon the notice, and the depositions of no other person than those named therein can be taken or read on the trial if properly objected to. Pilmer v. Branch of the State Bank, 16 Iowa, 321.

The defendants did not file cross-interrogatories. It is not every variance in the names of the witnesses that- will render the deposition invalid. But the party has the- right. to rely on the notice, and to presume the deposition of no person not named therein will be taken. He, therefore; can intelligently determine whether he desires to file cross-interrogatories.

We understand the rule to be that the law recognizes but one Christian name, and, therefore,, the motion was properly overruled as to William P. Smith, Henry C. Dunsmore, and Joseph C. Clark, and also as to Ellin Duffield, for there is no difference between such name and Ellen Duffield; the sound is the same; but this is not true as to James Millis and James "Willis, or Henry Gibson and Harvey Gipson, ór Mabalde Elliott and Mahal Elliott, or Alexander Robsen and Alexander M. Robrtson. As to these persons the motion should have been sustained.

The evidence of these witnesses was material, and we cannot say it'was not prejudicial. The other material errors assigned relate to the sufficiency of the evidence to sustain the verdict. It is unnecessary, and, as there must he another trial, improper, to refer thereto.

Reversed.