Kark v. Central Greyhound Lines
| Decision Date | 14 April 1949 |
| Docket Number | 17779. |
| Citation | 85 N.E.2d 277,119 Ind.App. 303 |
| Parties | KARK v. CENTRAL GREYHOUND LINES, Inc., et al. |
| Court | Indiana Appellate Court |
Appeal from Jasper Circuit Court; Moses Lepold, Judge.
John A. MacLennan, of East Chicago, and Jay E Darlington, of Hammond, for appellant.
Alfred Highland, of Hammond, for appellees.
Appellant brought this action against appellees for damages for alleged personal injuries arising out of a collision between appellant's automobile and a bus of appellees.
Trial to a jury resulted in verdict in favor of appellees.
This appeal presents but two questions: First, Did the trial court err in overruling appellant's motion to quash the notice and subpoena which appellees served to take the deposition of one Alvin Fladeland preceding the trial? Second, Irregularity in the proceedings of the court by which plaintiff was prevented from having a fair trial, consisting of the fact that the jury which tried the case was not lawfully selected and was not a lawful jury, due to the fact that the Judge without exhausting the available panel of regularly drawn veniremen, arbitrarily took it upon himself to have his bailiff notify two outsiders several days before the trial to appear for jury duty, which they did, with the result that both served on the jury and one became the foreman--all without compliance with the several statutes governing such matters and without plaintiff's knowledge of these facts until the date of filing motion for new trial. This ground of the motion for new trial was verified and uncontradicted.
In support of his first question appellant asserts there was no statutory authority for taking the deposition because Fladeland lived in an adjoining county and appellees knew he would be appellant's chief witness that appellees had no intent of taking the deposition for any legitimate purpose but took it solely for the purpose of conducting a pre-trial inquisition of appellant's chief witness to learn under oath beforehand all that he was going to testify against them at the trial; that this constituted an abuse of process.
The first sentence of § 2-1506, Burns' 1946 Replacement, provides as follows:
'In all actions, depositions may be taken by either party, in vacation or term time, at any time after service of summons, without order of court therefor.'
The section then enumerates the cases in which depositions may be used in the trial of issues.
§ 2-1515, Burns' 1946 Replacement, provides as follows:
'When a deposition is offered to be read in evidence, it must appear to the satisfaction of the court that the cause for taking and reading it still exists.'
The foregoing provisions of the statute were construed in the case of Wehrs v. State, 1892, 132 Ind. 157, 161, 163, 31 N.E. 779, 781. The Supreme Court held a deposition may be taken under the statute although at the time it is taken a state of facts does not exist which would make it admissible in evidence. In that case the court said:
In the more than fifty years that have elapsed since that decision there has been no change in the above quoted provisions of the statute. See also, 1, Watson's Rev. Works Practice & Forms, pp. 754, 755, § 1160; 2, Gavit, Indiana Pleading & Practice, p. 2003, § 301.
We are of the opinion the trial court did not err in overruling appellant's motion to quash the notice and subpoena to take this deposition.
In support of his second question, appellant asserts it was reversible error for the trial court to select and call in two strangers for jury...
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