Wade v. King

19 Ill. 301

• Court: Illinois Supreme Court
• Decided: December 15, 1857
• Status: Published

Opinion

Skinner, J.

Nicholas King filed his bill in equity against the' personal representatives and heirs of William and Joseph King, to obtain his portion of personal and real estate held by the personal representatives and heirs of William and Joseph. On the hearing, the court rendered a decree settling the rights of Nicholas as between him and the defendants to that bill, and specially reserving to the heirs and representatives of Joseph, their rights as against the heirs and representatives of William.

The heirs of Joseph filed this bill to adjust those rights reserved in the decree, and seek to establish them against the heirs and representatives of William.

On the hearing of this bill, the complainants offered to read certain depositions taken in the former suit, and the court refused to allow them to be read.

The rule is, that depositions taken in a former suit between the same parties, involving the same question, or subject matter, are admissible when the question again arises for judicial determination. And it is not material that the parties be identical, or that there be complete mutuality in respect to their relation to each other, or to the subject matter. It is sufficient, if the same matter were in issue in both cases, and those against whom the depositions are offered, or those under whom they claim the estate or right in question, had opportunity of cross-examining the witnesses and testing the truth of their testimony.

Here, substantially the same questions are in issue and to be determined, as in the former suit; the rights of Nicholas and the heirs of his two brothers, William and Joseph, among themselves, to the property held by William in trust for all; and these defendants, or those through whom they claim, and between whom and them, as to the estate in controversy, there is privity, had full opportunity of testing the truth of the testimony contained in the depositions, in the various ways known to the law. As against these defendants the depositions were admissible. Dole v. Wiley, 15 Ill. R. 576 ; 3 Greenl. Ev., secs. 326, 341, 342 ; 1 ibid., secs. 553, 554.

Decree reversed and cause remanded.

Decree reversed.