Ex parte Cross

• Decision Date: 12 April 1945
• Docket Number: 3 Div. 426.
• Citation: 22 So.2d 378,247 Ala. 85
• Parties: Ex parte CROSS.
• Court: Alabama Supreme Court

22 So.2d 378

247 Ala. 85

Ex parte CROSS.

3 Div. 426.

Supreme Court of Alabama

April 12, 1945

Rehearing Denied June 14, 1945. [Copyrighted Material Omitted]

Hill Hill, Whiting & Rives and Jack Crenshaw, all of Montgomery, for petitioner.

Powell & Hamilton, of Greenville, and Steiner, Crum & Weil, of Montgomery, for respondent.

The petition shows that on or about December 13, 1944, petitioner filed before the Register of the Circuit Court of Butler County her affidavit and application as follows:

'Now comes Rosalie Cross and respectfully shows that she expects to be a party to a suit at law in the courts of this state; that the name of the party who is expected to be adverse therein is the Louisville and Nashville Railroad Company, a corporation.

'That the testimony of a witness, Walter Darby, whose residence is Montgomery, Alabama, is necessary to the prosecution of such suit and the facts generally expected to be proven by the witness are as follows:

'That the witness was the engineer of a train of the Louisville and Nashville Railroad Company which collided with and killed the husband of Rosalie Cross; that said witness saw Mr. Cross on the railroad track several hundred feet before he was struck by the train of the Louisville and Nashville Railroad Company.

'Wherefore, she respectfully prays for an order allowing the examination of the witness pursuant to Title 7, Section 493 of the Code of Alabama of 1940, and prays that notice of this application and of the time and place of the examination and of the name and residence of the witness to be examined and the matter touching which the examination is to be held, be given by publication once a week for three successive weeks in accordance with Section 494 of Title 7 of the Code of Alabama.'

That the register thereupon made an order allowing examination of said witness, giving notice thereof by publication once a week for three successive weeks in a newspaper, and also by mailing a copy of such paper, together with a copy of the application and order of the register setting the date for taking testimony, to Louisville & Nashville Railroad Company at Louisville, Ky., the first publication of said notice being more than 40 days prior to the date set by the register for examination of said witness. That, by leave of court, the application was amended by adding the words 'in her capacity as administratrix of the estate of E. C. Cross, deceased.' That Louisville & Nashville Railroad Company thereafter filed plea in abatement and objections to the petition, whereupon respondent, as Judge of the Circuit Court of Butler County, made and entered an order sustaining plea in abatement and motion to quash filed by Louisville & Nashville Railroad Company. The petition alleges that petitioner has a clear legal right to the examination of said witness for the purpose of perpetuating his testimony, as provided in said Article 10, Title 7 of the Code; that she has no adequate remedy by appeal and that issuance of the order allowing the examination of the witness pursuant to Code, Title 7, § 493, is a ministerial duty. It is prayed that writ of mandamus issue directing respondent to expunge said order denying petitioner an order allowing examination of said witness, and forthwith to make and enter an order allowing such examination.

FOSTER Justice.

The controversy here relates to an effort by the petitioner, to whom we will refer as plaintiff, to perpetuate the testimony of a witness under sections 491 et seq., Title 7, Code of 1940. Those statutes have remained the same in all our codes, including the first, 1852. Section 492 is as follows:

'The applicant must make affidavit before a circuit or probate judge, or register stating:

'That he is a party or expects to be a party, to a suit, either at law or equity, in a court of this state.

'That the testimony of a witness, whose name and place of residence is stated, is necessary to the prosecution or defense of such suit, and the facts generally expected to be proved by the witness.

'If such suit be not actually commenced, the name of the party who is expected to be adverse therein, his residence, and that he is of full age.'

Two distinctive principles in connection with it were stated in Winter v. Elmore, 88 Ala. 555, 7 So. 250. One is that it does not authorize such examination of adverse parties to pending or anticipated suits. (Not affected by the case of West v. Cowan, 189 Ala. 138, 66 So. 816.) The other is that it 'was intended as a simple and inexpensive substitute for suits in equity, both to perpetuate testimony and to take depositions de bene esse. The former proceeding was allowed to be instituted only by an expected party to a suit who had no present immediate right of action, and when he, (1) either being in possession of property, expects some future aggression upon his enjoyment, or else, (2) being out of possession, without a present right of action, designs to commence proceedings at law when his right shall accrue. The latter was authorized only where the complainant had an existing cause of action or defense, and was party to an action at law then pending, but not at issue, and desired to examine the only surviving witness, who is aged or sick, or about to leave the jurisdiction, or other analogous reason to prevent the evidence being lost.' Winter v. Elmore, supra.

That interpretation of the statute must now be treated as a part of it as though so expressed. It is not a statutory adoption of an equitable proceeding applying it to a court of law. But as a substitute, it is machinery which may be used in lieu of the equitable proceeding. Its terms describe its essential features. Since it includes suits already begun, it is different from the equitable remedy to perpetuate testimony. After a suit is begun, its requirements do not include some disability of the witness, as the equitable remedy to examine de bene esse did, and as required now under the equity rule for such examination. Equity Rule 48, Code 1940, Tit. 7 Appendix.

Before movant may

perpetuate the evidence by the equitable proceeding, if he wanted to use the evidence in a suit which he intended to begin, he was required to allege that because of some peculiar condition, he was unable immediately to do so. 16 Amer.Jur. 702; 26 Corpus Juris Secundum, Depositions, p. 811, sec. 5 a and b, p. 828, note 35. He could not voluntarily delay bringing suit so as to enable him to perpetuate the testimony when he could not do so after he had brought the suit. For after suit was brought he could only pursue the equitable remedy to examine the witness de bene esse, because of some disability of the witness. No showing was necessary as to the disability of the witness to perpetuate his testimony, but it was necessary in order to take it de bene esse. Winter v. Elmore, supra; 16 Amer. Jur. 701, section 7; 26 Corpus Juris Secundum, Depositions, p. 812, § 6.

But under section 492, supra, it is immaterial whether it is taken before or after suit is brought, as to the matter of his disability. His delay in bringing suit until after the evidence is perpetuated would not benefit him nor prejudice his adversary, as the statute is now expressed. For in neither event is he required when so proceeding to show any disability of the witness. Such evidence cannot be used on the trial if the witness is available and able to testify. Section 497, Title 7, Code 1940.

It is clear therefore that if the witness is not a party in fact or in anticipation, his testimony may be taken to perpetuate it under section 492, supra, when the required affidavit is made, whether the suit is pending or not. The name of the party defendant in a suit which is anticipated must be stated, who must of course be another person than the proposed witness. Such proposed plaintiff may not defeat the statute by later making such witness a party defendant. The principle of estoppel would clearly have application. Having examind him as a witness under a statute which does not permit plaintiff to examine him as a party, and then to make him a party would be to permit plaintiff to take antagonistic positions. 8 Ala.Dig. Estoppel 668, § 68, and supplement. We do not intimate that this is intended to be done in the instant case, but it is only observed to consider the argument advanced here that although plaintiff has later brought the suit against the Louisville and Nashville Rairoad Company, without making this witness a party, it is still open to him to do so, and thus circumvent the law. So we answer that such a procedure could not be accomplished if attempted. And the fact that suit was begun pending these proceedings is not material to any question now under consideration. Section 492, supra, applies whether the suit is pending or not. Plaintiff has complied literally with section 492, supra.

The Louisville and Nashville Railroad Company, the alleged adverse party, was given notice by publication as provided by section 494, Title 7, Code 1940, because it is a non-resident, being a foreign corporation. It appeared specially and complained before the circuit court, in equity and made objection to the proceeding being conducted before the register of that court who had made the order to examine the witness, and sought to abate and quash the proceeding on the ground, among others, that although it was a foreign corporation, it had qualified to do business in Alabama, and was engaged in doing such business in Butler County when this proceeding was begun, and had an authorized agent there located on whom notice could be served, as provided in section 188, Title 7, Code 1940. See, also, section 192, Title 7, Code 1940, as amended, cumulative pocket part (same section); also, section 192, ...