66 Ala. 244 (Ala. 1880), Ryan v. Couch

Citation66 Ala. 244
Opinion JudgeSOMERVILLE, J.
Party NameRyan v. Couch.
AttorneyW. B. MARTIN, for appellant. JNO. W. A. SANFORD, contra.
CourtSupreme Court of Alabama

Page 244

66 Ala. 244 (Ala. 1880)




Supreme Court of Alabama

December Term, 1880

Action on Sheriff's Official Bond.

APPEAL from the Circuit Court of Marshall.

Tried before the Hon. LOUIS WYETH.

W. B. MARTIN, for appellant.

JNO. W. A. SANFORD, contra.


The examination of witnesses in cases, civil or criminal, is, in a great measure, necessarily under the control of the presiding judge, and subject to a just, wise, and sound judicial discretion. If he deem it necessary, in order to elicit the truth, and promote justice, he may, proprio motu, or on the application of either party to the suit or proceeding, order all the witnesses, except the one under examination, to leave the court. This practice is believed to be coeval with judicature, having long been administered in the British Parliament, and the courts of both England and Scotland. When requested by counsel, or parties, though not a matter of right, the order is rarely withheld.--2 Best on Ev. § 636; 1 Greenl. Ev. § 432.

But it is obvious that this rule of exclusion ought never to be applied, so as to debar a party to a suit from being present during the progress of his cause. He has a right to be present, for the purpose of aiding and instructing his counsel in prosecuting or defending his suit. To order him from the court-room, while his case is in process of judicial investigation, would be violative of the spirit, if not the very letter of the Declaration of Rights, which declares that "no person shall be debarred from prosecuting or defending, before any tribunal in this State, by himself or counsel, any civil cause to which he is a party."--Const. Art. 1, § 11; 2 Best on Ev. § 636; 1 Greenl. Ev. (Redf. Ed.)§ 432, notes 1 and 3.

It was within the sound discretion of the court below to place the witness, John Ryan, under the rule; and, although we should be of opinion that this discretion was not exercised in furtherance of justice, it is not a revisable error, subject to review by the appellate court.--1 Greenl. Ev. § 431. In view, however, of the practical importance of the question raised, and by the request of appellant's counsel, we deem it proper to indicate the correct rule of practice in cases of this character. Where a judge is satisfied, from the statement of counsel in open court, or otherwise, that a witness in a cause has acquired such an intimate knowledge of the facts, by reason of having acted as the authorized agent of either of the parties, that his services are required by counsel in the management of the trial, he ought not, especially in the necessary absence of his principal, to be placed under the rule. All rules of court are to be subordinated, in their construction and...

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2 practice notes
  • 63 Miss. 386 (Miss. 1885), French v. Sale
    • United States
    • Mississippi United States State Supreme Court of Mississippi
    • Invalid date
    ...this State, by him or herself, or counsel or both." Constitution of Miss., Article I, § 30; Greenlf. Ev., § 432, note; Ryan v. Couch, 66 Ala. 244. Page 392 But if it is deemed essential to the discovery of truth that a party to a civil suit, who is also a witness, should be examined be......
  • 183 So.2d 782 (Ala. 1966), 6 Div. 61, Lutsky v. Lutsky
    • United States
    • Alabama Supreme Court of Alabama
    • March 3, 1966
    ...upon the rule of excluding witnesses from the court room, which is not subject to review on appeal except for gross abuse. Ryan v. Couch, 66 Ala. 244(1); New York Life Ins. Co. v. McLean, 218 Ala. 401, 118 So. The decree is due to be affirmed, and it is so ordered. The foregoing opinion was......
22 cases
  • 186 So.2d 132 (Ala. 1966), 1 Div. 157, State v. Dunlap
    • United States
    • Supreme Court of Alabama
    • May 5, 1966
    ...but in any event the trial court did not err in permitting Mr. Haas to testify on behalf of appellees under our holding in Ryan v. Couch, 66 Ala. 244. The judgment of the trial court is Affirmed. LIVINGSTON, C.J., and GOODWYN, MERRILL and HARWOOD, JJ., concur. [279 Ala. 422] Page 136 COLEMA......
  • 173 So. 21 (Ala. 1937), 1 Div. 933, First Nat. Bank v. Lartigue
    • United States
    • Supreme Court of Alabama
    • January 21, 1937
    ...interest. The parties to a suit have the right to be present during the trial. Smith v. Collins, 94 Ala. 394, 10 So. 334; Ryan v. Couch, 66 Ala. 244. But because certain persons may or not have some uncertain, undefined, contingent interest does not, we think, give them the constitutional r......
  • 42 So. 706 (Fla. 1906), Seaboard Air Line Ry. v. Scarborough
    • United States
    • United States State Supreme Court of Florida
    • December 21, 1906
    ...to be present and to aid in or observe the progress of the trial. 1 Thompson's Trials, § 279; 8 Ency. of Pl. & Pr. 93; Ryan v. Couch, 66 Ala. 244, text 248. The only person, however, who would be in a position to complain of this action, would be the party to the cause so excluded, who ......
  • 194 So.2d 505 (Ala. 1966), 6 Div. 215, Nationwide Mut. Ins. Co. v. Smith
    • United States
    • Supreme Court of Alabama
    • August 25, 1966
    ...excusing witnesses from the rule, is a matter left largely to the discretion of the trial judge. Indeed, an earlier case, Ryan v. Couch, 66 Ala. 244, indicates that the exercise of such discretion is not a revisable error. Later cases however, are to the effect that a lower court's action i......
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