Evans v. Reed

Decision Date08 November 1875
Citation78 Pa. 415
PartiesEvans <I>versus</I> Reed.
CourtPennsylvania Supreme Court

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas of Lancaster county: Of May Term 1875, No. 44 E. Champneys, for plaintiff in error.—When a witness examined at a former trial between the same parties on the same subject-matter is dead, the notes of testimony taken on that trial may be given in evidence on a subsequent trial: Phila. & R. Railroad Co. v. Spearen, 11 Wright 300; Cornell v. Green, 10 S. & R. 14; Rhine v. Robinson, 3 Casey 35; Magill v. Kauffman, 4 S. & R. 319; Clark v. Sanderson, 3 Binn. 192; Hamilton v. Marsden, 6 Id. 47; Hamsher v. Kline, 7 P. F. Smith 403; Moore v. Pearson, 6 W. & S. 51; Livingston v. Cox, 8 Id. 61.

D. G. Baker and O. J. Dickey, for defendant in error, cited Allum v. Carroll, 17 P. F. Smith 70.

Mr. Justice MERCUR delivered the opinion of the court, November 8th 1875.

This action was not brought by or against an executor, administrator or guardian. It does not, therefore, fall within the proviso to the first section of the Act of 15th April 1869. It differs from any case which has preceded it. It was an action between parties in their own right.

On the first trial of the case, involving the same subject-matter, but where the action was in a different form, parties had testified and their testimony had been reduced to writing. The verdict then rendered had been set aside and the form of action subsequently changed by leave of the court. After that verdict the plaintiff died and his administratrix was substituted. The sole question now is whether the testimony of the plaintiff, thus taken during his life, is admissible in evidence on a subsequent trial of the case after his death.

When the testimony was taken the plaintiff was a competent witness in the case. It was taken with full opportunity for cross-examination. Did his subsequent death make his testimony thus taken incompetent? The third section of the Act of 15th April 1869, permitting parties to testify, expressly declares the testimony of witnesses authorized by the act may be had "by deposition or commission issued." The manifest intent, then, was to permit the deposition of a party to be taken for the perpetuation of his testimony against all contingencies that might arise, whether of absence or of death. The Act of 28th March 1814, Purd. Dig. 625, pl. 24, declares: "Any deposition taken, or to be taken in any cause, which by the rules of law may be read in evidence on the trial of the cause in which it is or may be taken, shall be allowed to be read in evidence in any subsequent cause wherein the same matter shall be in dispute between the said parties or persons, their heirs, executors, administrators or assigns."

If the deposition of a party be duly and regularly taken so as to be admissible in evidence in a pending case, it is...

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8 cases
  • Worthington v. Levis
    • United States
    • Pennsylvania Superior Court
    • 13 Marzo 1917
    ...Affirmed. L. W. Baxter, for appellant. -- It was error to exclude the petition and answer: Haupt v. Henninger, 37 Pa. 138; Evans v. Reed, 78 Pa. 415; Eckman v. Eckman, 68 Pa. 460; Graham's Est., 12 D.R. 415; Com. v. Monongahela Bridge Co., 216 Pa. 108; Spang v. Mattes, 253 Pa. 101; Levy v. ......
  • Greenlee v. Mosnat
    • United States
    • Iowa Supreme Court
    • 20 Mayo 1907
    ...B. Co. v. Murray, 97 Ga. 326 (22 S.E. 972); Jack v. Woods, 29 Pa. 375; State v. New Orleans Waterworks Co., 107 La. 1 (31 So. 395); Evans v. Reed, 78 Pa. 415; Wells Insurance Co., 187 Pa. 166 (40 A. 802); State v. Valentine, 29 N.C. 225; 2 Wigmore, Evidence, sections 1401-1410; 2 Jones, Evi......
  • State v. Stewart
    • United States
    • Kansas Supreme Court
    • 7 Julio 1911
    ... ... ( Wafer v. Hemken , [La. 1844] 9 Rob. 203.) Other ... cases of like import are: Matter of Budlong , 61 Hun ... 131; Evans v. Reed , ... [116 P. 494] ... 78 Pa. 415; Wells v. Insurance Co. , 187 Pa. 166, 40 ... A. 802; Gold v. Eddy, Administrator , 1 Mass. 1; ... ...
  • Greenlee v. Mosnat
    • United States
    • Iowa Supreme Court
    • 20 Mayo 1907
    ...B. Co. v. Murray, 97 Ga. 326, 22 S. E. 972;Jack v. Woods, 29 Pa. 375;State v. New Orleans Waterworks Co., 107 La. 1, 31 South. 395;Evans v. Reed, 78 Pa. 415;Wells v. Insurance Co., 187 Pa. 166, 40 Atl. 802;State v. Valentine, 29 N. C. 225; 2 Wigmore, Evidence, §§ 1401-1410; 2 Jones, Evidenc......
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