Wallace v. American Linen Thread Co.

46 How. Pr. 403, 2 Thomp. & Cook 574

Opinion

By the Court, Davis, J.

We are of opinion that an order denying a motion commission to take testimony of a foreign witness is appealable. Such an order affects a substantial right. The denial of the application may prevent the party from establishing his case or defense by depriving him of the only means of getting his evidence before the court. We have held, at the present term, that an order granting a commission is not appealable, but the distinction is obvious. The granting of a commission cannot affect prejudicially a substantial right, because no party can be said to have such a right to prevent his antagonist from obtaining, in the orderly forms of law, the testimony of witnesses whom he is unable to produce personally upon a trial.

In this case the court denied the motion on the ground that the testimony sought was irrelevant. If it were clearly so, the discretion of the court would have been properly exercised. But we are of opinion that the testimony would not be wholly irrelevant. It might be important on the question of damages, and its admissibility for other purposes may depend upon circumstances arising in the course of the trial. The discretion of the court is a judicial one, and is liable to be reviewed.

The order should be reversed, with ten dollars costs of the appeal and disbursements therein, and the order for commission granted.

Daniels and Donohue, JJ., concurred.