Irons v. Bias

• Court: West Virginia Supreme Court
• Writing for the Court: POFFENBARGER, P.
• Citation: Irons v. Bias, 92 W.Va. 236, 114 S.E. 566 (W. Va. 1922)
• Decision Date: 31 October 1922
• Docket Number: 4637.
• Parties: IRONS v. BIAS.

114 S.E. 566

92 W.Va. 236

IRONS v. BIAS.

No. 4637.

Supreme Court of Appeals of West Virginia.

October 31, 1922

Submitted October 24, 1922.

Syllabus by the Court.

A deposition not signed by the witness is admissible in evidence, if taken in shorthand, transcribed in the English language, and certified in conformity with the requirements of section 33 of chapter 130 of Code of 1913 (sec. 4890) by virtue of that statute; but it is not admissible unless it is so certified, if objection thereto is made in due time and in proper manner.

If a deposition is written in shorthand and transcribed by a person other than the officer before whom it is taken, such officer must certify, in addition to other facts he is required to certify, that it was taken in stenographic notes and transcribed under his direction and supervision.

An omission of a necessary fact from the certificate to a deposition properly taken may be supplied by amendment, and, if such certificate is amended, the deposition has all the virtue it would have had, if it had been properly certified before it was filed.

Failure to move the court to suppress a deposition, before the trial of the case in which it is filed, when the infirmity therein is other than incompetency of the witness or irrelevancy of his testimony operates as a waiver of the defect for which it might have been suppressed, in the absence of an amendment curing such defect, and an objection to the admission thereof, based thereon, brought to the attention of the court, for the first time, in the trial of the case, upon the offer to introduce the deposition in evidence, comes too late, and is unavailing.

Error to Circuit Court, Cabell County.

Action by Harry S. Irons, trustee, against H. W. Bias. Judgment for plaintiff, and defendant brings error. Affirmed.

Daugherty & Young, of Huntington, for plaintiff in error.

Livezey & McNeer, of Huntington, for defendant in error.

POFFENBARGER P.

An adverse ruling upon an objection to the admission of a deposition in evidence constitutes the basis of all of the assignments of error set forth in this case. Presumptively it was the sole ground of the motion to set aside the verdict, since no other is urged here for reversal of the judgment.

The action was assumpsit by the trustee appointed in a bankruptcy proceeding against A. R. Stacy, for recovery from the defendant, H. W. Bias, of $3,316.00 in money and the value of certain other property, alleged to have been received from Stacy and retained by him, in fraud of Stacy's creditors and by way of preference over them, in violation of the bankruptcy statute. Defense was made upon the ground of payment of the money upon bona fide indebtedness to the defendant and exchange of the other property between him and Stacy, without notice of the insolvency of the latter. Upon the evidence, the sufficiency of which to sustain the verdict is not questioned, two instructions given at the instance of the plaintiff, of which no complaint is made here, and an instruction given at the request of the defendant, the jury returned a verdict in favor of the plaintiff for the sum of $3,979.30.

The deposition in question is that of Stacy's wife, taken by a notary public, in the state of North Carolina, in April 1921, and certified on the 28th day of that month. It was no doubt transmitted to the clerk of the circuit court of Cabell county under seal, immediately after it was transcribed from the stenographic notes. The trial in this case occurred September 15, 1921, the jury having been impaneled in the evening of the preceding day, and no objection was made to the deposition until late in the evening of September 13 1921, when it was brought to the attention of opposing counsel only. Upon the offer thereof in evidence, objection to its introduction was interposed upon the grounds of lack of the signature of the deponent and variance of the deposition, as written, from the testimony of the witness as given before the notary; the latter contention being founded upon her affidavit made September 3, 1921, and saying she had, on that day, read the deposition for the first time, and upon her first opportunity to do so, and found it incorrect. In what respect or to what extent it is incorrect, the affidavit does not indicate.

That the statute (section 33 of chapter 130 of the Code [sec. 4890]) authorizes omission of the signature of the witness in the case of a deposition taken in shorthand and certified in the manner therein prescribed is admitted; but the notary's certificate is assailed on the ground of insufficiency, and validity of the unsigned deposition denied, in view of the alleged defect in the certificate. In other words, admissibility of an unsigned, but properly certified, deposition is conceded, and admissibility of an unsigned, but insufficiently certified deposition, denied. This deposition was taken by B. T. Woodall, notary public, but the writing was done by C. W. Stevens in stenographic notes, and then transcribed in the English language by him, after he had been sworn by the notary to take correctly, and accurately transcribe, the evidence, all of which is certified by the notary. The objection is that the notary does not certify that the stenographic characters and notes were correctly taken and accurately transcribed "under his direction and supervision."

The objection to the certificate is well taken. The last clause of the section in question, requiring the officer before whom the deposition is taken to certify that another person taking it in shorthand was sworn correctly to take and accurately to transcribe it, is not a substitute for the preceding clause. It merely requires certification of a further or additional fact. To hold otherwise would ignore the phrase in the preceding clause, "or under his direction and supervision," for that phrase can have no application or operation, when the officer himself does the writing. Under the rules of interpretation, some force and effect must be allowed it. This construction is further fortified by the context. The section provides, in the first place, that depositions may be taken in shorthand, without saying who may do the writing. Then it provides for the case in which the officer does it, and requires him to certify that he did it correctly and accurately. In this connection, it drops in the phrase for certification of correctness and accuracy of work done under his supervision, which can have no application to work done by himself. Finally, it requires him to certify, in the case of the actual writing by a person other than himself, that he swore the person who did the writing, and that is the only case in which the phrase in question can apply. If not used there it is inoperative, for there is no other case in which it can have any reasonable or efficacious operation. It cannot be assumed that the Legislature intended an undue and unnecessary relaxation of the sanctions under which courts are to receive evidence. In the requirement that depositions be taken before certain classes of officers, there is perceived a manifestation of legislative intent that such officers shall perform an important function. It cannot be supposed that mere formality was...