Brody v. Armstrong

• Decision Date: 27 January 1921
• Docket Number: 6 Div. 200
• Citation: 205 Ala. 263,87 So. 798
• Parties: BRODY v. ARMSTRONG.
• Court: Alabama Supreme Court

87 So. 798

205 Ala. 263

BRODY v. ARMSTRONG.

6 Div. 200

Supreme Court of Alabama

January 27, 1921

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Petition by M. Brody for mandamus to be directed to Hunter Armstrong as Register in Chancery and Commissioner, to require him to reduce the answers of petitioner to writing in relator's presence, etc. Decree denying petition, and relator appealed. Affirmed.

A Latady, of Birmingham, for appellant.

Beddow & Oberdorfer, of Birmingham, for appellee.

GARDNER J.

The petitioner in this cause, appellant here, was being examined orally before a commissioner agreed upon by the parties in an equity suit then pending in the circuit court of Jefferson county, and he insists by this proceeding that upon such examination his legal rights are being denied in that the testimony is being taken in shorthand to be subsequently transcribed into the English language, and that this is violative of the provisions of section 4039 of the Code of 1907, which places the duty upon the commissioner to reduce the answer to writing or cause the same to be done. The argument is that this manner of taking testimony by shorthand is not writing--citing Howerton v. Augustine, 153 Iowa, 17, 132 N.W. 814, and Moller v. United States, 57 F. 490, 6 C.C.A. 459, which cases we have examined.

As we understand it, the argument of counsel for appellant is based upon the theory that by this method of examination he is deprived of the right of an examination of his testimony, and dependent upon the certificate of a commissioner as to the correctness thereof, after the same has been transcribed--all in violation of the foregoing section of the Code, and to his detriment and disadvantage. In this insistence we do not agree. This is an oral examination had before a commissioner agreed upon by the parties, and is governed by rule 65 Chancery Practice, as found on page 1546 of the Code of 1907. Subdivision 6 of said rule requires that the deposition upon such oral examination shall be taken down in the form of a narrative, and when completed the same shall be read over to the witness and signed by him in the presence of the parties or counsel, or such of them as may attend, and that if the witness refuses to sign the officer taking the deposition shall state that fact in his certificate. Upon such examination therefore, so conducted, it is seen that the witness is given the fullest protection...