Bates v. Bates

• Decision Date: 15 April 1902
• Citation: 67 S.W. 932,94 Mo.App. 70
• Parties: ELLA BATES, Respondent, v. D. D. BATES, Appellant
• Court: Missouri Court of Appeals

67 S.W. 932

94 Mo.App. 70

ELLA BATES, Respondent, v. D. D. BATES, Appellant

Court of Appeals of Missouri, St. Louis

April 15, 1902

Appeal from Howell Circuit Court.--Hon. William N. Evans, Judge.

REVERSED AND REMANDED.

A. H Livingston and Harris & Norman for appellant.

(1) The admission of the deposition of J. M. Hoover, taken in another and distinct cause of action and between different parties was clearly error, and no authority can be found supporting the action of the court. Borders v. Barber, 81 Mo 636; Leslie v. Rich Hill, 110 Mo. 31; Cass Plow Works v. Ross, 74 Mo.App. 437. (2) Where depositions are taken in a case, they may be read in a subsequent action between the same parties and where the same issues are involved. Tyndall v. Johnson, 4 Mo. 113; Allen v. Chouteau, 102 Mo. 308; Lohman v. Stocke, 94 Mo. 672. (3) But where it is sought to use such depositions the depositions must be filed in the case in which they are intended to be used, or due notice must be given of their intended use. Samuel v. Withers, 16 Mo. 532; Cabanna v. Walker, 31 Mo. 274.

J. C. Sheppard and E. P. Dorris for appellee.

(1) It will be observed that the deposition of J. M. Hoover, objected to, was taken in a case between the same parties, at the same time as the deposition of the same witness taken on the part of defendant, and read in evidence by defendant, and about the same identical matter and conversation, and involving the same identical issues. "It is a well-settled principle that depositions taken in one case may be read in another suit between the same parties concerning the same subject-matter." Allen v. Chouteau, 102 Mo. 309. (2) A complete mutuality of all the parties is not required. 1 Greenl. Ev. (15 Ed.), sec. 553. The cases are so numerous on this point, we refrain from citing others. It certainly could not be reversible error in view of the fact that every fact testified to in the deposition was proven by other witnesses in the case, whose competency was not questioned, and especially so, when all these facts were proven by defendant's own witnesses. Farrell v. Ins. Co., 66 Mo.App. 153; Prickett v. Anchor Line, 13 Mo.App. 436; Miller v. Miller, 14 Mo.App. 418; Bradford v. Pearson, 12 Mo. 71; State v. Kring, 74 Mo. 612.

GOODE, J. Bland, P. J., and Barclay, J., concur.

OPINION

GOODE, J.

Respondent is the widow of Albert G. Bates, deceased, and appellant the administrator of his estate, while the action is replevin to recover possession of a promissory note for twenty-six hundred dollars on George Neal, claimed to have been assigned and delivered to the respondent by her husband a short time before his death.

There is another suit pending between Della Bates, a daughter of the respondent and the deceased and the defendant as administrator, wherein said daughter seeks to recover a note for one thousand dollars on a man named Culp, claimed to have been assigned to her by her father at the same time the assignment of the note in controversy in this case was made to her mother.

On the trial of the present action, the respondent's counsel offered in evidence the deposition of J. M. Hoover, taken in the case of Della Bates v. D. D. Bates. Hoover, who is dead now, was an attorney and drew the will of Albert G. Bates, and at the time of the preparation of the will had a conversation with the testator which was repeated in said deposition, in substance as follows:

"Q. State whether at that time you had a conversation with him in regard to disposing of his property not named in the will, and if so, what did A. G. Bates say to you? A. I did. After I had read over to him what he had willed in the will, I asked him if that was all the property he had; he said, 'No, I want to keep some back for the old man.' I told him he had all the property and the will under his control and had a right to change it or do as he pleased with it, and I stated to him, 'What you do not dispose of in your will, will be equally divided among all the heirs.' He then said, 'I have a right to do what I please with the property I have not disposed of in my will;' and in that conversation he asked if I had put the Culp note in the will to Della; I told him no, but that I could, and he said, 'No, it is not worth while, I will just turn it over to her.' I told him the fix him and me were in, he had better do it pretty soon, and he said he would right away."

When Hoover's deposition was offered, the appellant's counsel objected to it as inadmissible and incompetent for any purpose, since it was taken in a different suit between different parties; but the...