Semmens v. Walters
| Decision Date | 31 October 1882 |
| Citation | 55 Wis. 675,13 N.W. 889 |
| Parties | SEMMENS v. WALTERS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Iowa county.Lanyon & Spensley, for respondent, Louisa M. Semmens.
Reese & Carter and Briggs & Jenks, for appellant, Henry H. Walters.
1. The depositions were returned to the commissioner in Canada for correction by signing his name as a commissioner instead of consul of the United States. This was not error. 2 Wait, Pr. 707; Keeler v. Vanderpool, 1 Code R. (N. S.) 289; Creamer v. Jackson, 4 Abb. 413. It is suggested, but not decided, the statute authorizing commissions, contemplates their issue to unofficial persons not otherwise authorized to take depositions, and the issue of commissions only to persons in another state or territory of the Union. Consuls of the United States are authorized to take depositions without a commission, and a commission is needless. 2 Rev. St. U. S. (2d Ed.) § 1750; Herman v. Herman, 4 Wash. C. C. 555. And it is questionable whether the strict rules of taking depositions by commisioners ought to be applied in such a case, where the proper notice, as in this case, was given of the examination of certain witnesess whose residence is given in the notice before a consul of the United States in one of the provinces of Canada, and the time and place also given in the notice.
2. The residences of the witnesses were not stated in the caption of the interrogatories, but were stated in the notice accompanying them, or a copy of them. This was certainly a substantial compliance with the statute. Section 4114, Rev. St. Defects and irregularities in taking depositions, and in the examination of witnesses thereon, will be disregarded if they are merely formal, and do not affect the rights of the parties. Hewlett v. Wood, 67 N. Y. 394;Forrest v. Kissam, 7 Hill, 463;Rust v. Eckler, 41 N. Y. 488;Kimball v. Davis, 19 Wend. 437. And it is a matter of discretion to admit or suppress depositions taken under a commission, even where there has been an irregularity in examination of witnesses. Wanzer v. Hardy, 4 Wis. 229.
3. The last general interrogatory was not answered. The strict rule laid down by some authorities, that if this last interrogatory is not answered the deposition will in general be suppressed, as in Kimball v. Davis, supra, must rest upon the other rule that it must appear that by such an omission the opposite party might have been prejudiced. It is doubtful if there is no appearance on the other side, and no cross-interrogatories, whether the opposite party can complain of the omission. The reason given for the strict rule is that unless this last general interrogatory is answered, it is impossible to say that the witness has told the whole truth. Where it is clearly apparent, as in this case, that the witness could not have testified to anything further unless to contradict her evidence in answer to specific interrogatories, which certainly is not to be presumed, the omission was harmless. The witness was the party plaintiff, and it is not probable she would have testified to anything favorable to the other side, and especially in contradiction of her other testimony.
The testimony of the witness is so full, not only as to the general fact that the money which went into the mortgage was her separate property, but also as to the minute particulars of the manner in which she acquired it, that we may well say that the general interrogatory had already been fully answered; and that is sufficient. Fossing v. Hubbard, 55 N. Y. 471. If the deposition had been suppressed for any cause, there was still evidence in this case of the separate property of the plaintiff in the testimony of Thomas Parmelee, the cashier of the bank, and the draft of $913.80, which was made payable to her by indorsement. But, we think, the depositions were properly allowed.
4. The correspondence with divers persons in England, referred to in the deposition and made a part thereof, as original or positive evidence perhaps was not admissible, and the circuit court did not admit it on that ground, but only as explanatory of the testimony of the plaintiff that the money was hers. These letters are given to show how she came by it, and this was not necessaryor strictly proper, except on cross-examination. The fact that the money was hers was the only material one, and this she testified to positively, and the letters were merely in explanation or corroboration of her testimony relating to this fact. It is by no...
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