Coughlin v. Haeussler

• Citation: 50 Mo. 126
• Parties: PETER J. COUGHLIN, Respondent, v. HERMAN A. HAEUSSLER, EXECUTOR OF JOHN DILLON, Appellant.
• Decision Date: 31 March 1872
• Court: United States State Supreme Court of Missouri

50 Mo. 126

PETER J. COUGHLIN, Respondent,

v.HERMAN A. HAEUSSLER, EXECUTOR OF JOHN DILLON, Appellant.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

Krum & Patrick, for appellant.

The deposition of plaintiff cannot be admitted on the theory that the preservation of Dillon's testimony in a bill of exceptions, signed after a former trial, has rendered the deposition competent evidence. It is not claimed or pretended that the testimony given by the plaintiff at the first trial is the same as that contained in his deposition. As a matter of fact it was widely different. Hence, if the court is to go outside of the statute for a theory upon which to admit this deposition, there must be wanting the only reason for enlarging the spirit of the statute. The parties would not stand in the same position; Dillon testified after having heard the oral testimony of respondent. Had the deposition been read at the first trial, his own evidence might have been materially different from that preserved in the bill of exceptions as having been given by him.

Bakewell & Farish, for respondent, relied upon Parsons v. Parsons, 45 Mo. 265, and Stanton v. Ryan, 41 Mo. 510.

BLISS, Judge, delivered the opinion of the court.

There were two trials below, and before the first trial, the plaintiff being a non-resident, his deposition had been taken; but he was present and testified at the trial, as did also defendant's testator, then living. The testimony of both was preserved in a bill of exceptions. Dillon died before the second trial, and at the trial the court admitted in evidence the deposition of plaintiff, upon the ground that Dillon's former testimony, having been so preserved, might be read. Defendant, however, refused to read it, and assigns for error the admission of the plaintiff's deposition.

Evidence of the former testimony of Dillon was admissible, and the minutes of it, if correct, could have been read. (Parsons v. Parsons, 45 Mo. 265; 1 Greenl., § 163 et seq.) In that case the plaintiff could have testified, unless the object and spirit of the statute be made to yield to its letter. But if defendant refuses to offer them, may the plaintiff still be a witness? It cannot be doubted that if both parties had died, and a record of their testimony had been preserved, it might at the second trial have been offered on either side. Is it reasonable to put the plaintiff in a worse condition than his administrator would be in? If he had also died, his former testimony could have been proved as well as that of his opponent, and the only reason why it cannot be now is because he is living and the best evidence is required.

As has been so often stated, the object and spirit of the statute is to place parties upon an equality, so that one party shall not be permitted to testify to...