Ellis v. Spaulding

• Decision Date: 15 October 1878
• Citation: Ellis v. Spaulding, 39 Mich. 366 (Mich. 1878)
• Court: Michigan Supreme Court
• Parties: Mary Ellis et al. v. Oliver C. Spaulding

39 Mich. 366

Mary Ellis et al. v. Oliver C. Spaulding

Supreme Court of Michigan

October 15, 1878

Submitted October 10, 1878

Error to Berrien.

Ejectment. Plaintiffs bring error.

Judgment reversed, with costs, and a new trial ordered.

George S. Clapp for plaintiffs in error. Where there is no mistake as to the person a deposition should not be excluded for a slight variation in the name of the witness designated in the commission for taking testimony, Arnold v. Nye, 23 Mich. 294; Eaton v. Peck, 26 Mich. 60; Torrans v. Hicks, 32 Mich. 309; People v. Collins, 7 Johns. 549; Padgett v. Lawrence, 10 Paige 170; Cobb v. Lucus, 15 Pick. 7; Kincaid v. Howe 10 Mass. 203.

Edward Bacon and Cholwell Knox for defendant in error. A deposition is inadmissible if the name of the deponent so far differs from the name given in the commission to take testimony, that the names are not idem sonans, (Boothroyd v. Engles, 23 Mich 19; Brown v. Southworth, 9 Paige 350; Bennett v Libhart, 27 Mich. 489) or an indictment for perjury would not lie, U. S. v. Babcock, 4 McLean 113; U. S. v. Stowell, 2 Curtis C. C., 153; Warner v. Fowler, 8 Md. 29; Whart. Amer. Crim. Law, §§ 2218, 2254, 2269.

OPINION

Cooley, J.

The plaintiff in this case obtained a commission for taking the testimony of one Mary Ann Glaspell at Philadelphia. The order for the commission was in due form, and interrogatories addressed to the witness were settled, and attached to the commission. By mistake in drafting the commission the name of the witness appears to have been given as Mary Ann Gaspell. The person intended nevertheless appeared before the commissioner and her evidence was taken and duly returned. When the cause came on for trial the evidence was objected to for the reason, among others, that the person whose testimony was taken was not the person whom the commissioner was directed to examine. The circuit court sustained the objection.

The ruling was manifestly erroneous. The interrogatories attached to the commission sufficiently corrected the error, which was merely clerical. No one was misled; the right person was examined, and the objection had no merit whatever. It is said, however, that the error was immaterial, because on the other evidence in the case it clearly appears that the plaintiffs, had the deposition been received, could not have recovered. There are two conclusive answers to this suggestion: first, the facts in the case...