Kellum v. Smith

• Decision Date: 06 May 1861
• Parties: Kellum <I>versus</I> Smith.
• Court: Pennsylvania Supreme Court

Page 241

39 Pa. 241

Kellum versus Smith.

Supreme Court of Pennsylvania.

May 6, 1861.

ERROR to the Common Pleas of Bradford county.

William Watkins, for defendants in error, insisted that the depositions were properly rejected, because,

1. The rule and interrogatories contained the names of two persons who were not defendants at the time, a nolle prosequi having been previously entered as to them.

2. The commissioner acted without legal authority, the commission not being tested by the president judge, the Hon. David Wilmot, but in the name of a former judge, who was deceased.

3. The interrogatories were leading.

4. The rule and notice, naming as commissioner ____ Buckley, Esq., Freeport, Illinois, was not sufficiently certain, the appellation of "Esq." to ____ Buckley being no part of the name of an individual.

The opinion of the court was delivered, May 6th 1861, by THOMPSON, J.

It does not seem to have been disputed that the person named as commissioner on part of the defendant, did take the testimony on the interrogatories filed. But it was contended that he was not named, and that the notice was indescriptive. The notice was, "that ____ Buckley, Esq., a justice of the peace of Freeport, Illinois," was nominated commissioner to take depositions.

The rule of court of Bradford county requires "written notice of the rule (for a commission) with a copy of the interrogatories, and of the name of the commissioners or their office titles," to be served on the adverse party, his agent or attorney, ten days before issuing the commission.

Here there was a name, and also the official title of the gentleman given. We think this was sufficiently descriptive. It is possible that the surname might not have been sufficient, but together they were: Sweitzer v. Meese, 6 Binn. 502. In that case "Spangler, innkeeper," was held sufficient, and there is no perceptible difference between the requirement to give the name in that case and the same requirement in this; nor for the propriety of relaxing the rule for notice in the one case more than the other. The plaintiff here was not misled into trusting a person different from one supposed to have been named. He was not prevented from filing cross-interrogatories, and naming his own commissioner, nor was there evidence that there was any other person by the name of ____ Buckley, Esq., a justice of the peace, in Freeport, Illinois. The objection is purely technical, but even on this ground we think the...