Kemble v. Lyons

• Decision Date: 25 October 1918
• Docket Number: 31973
• Citation: 169 N.W. 117,184 Iowa 804
• Parties: C. W. KEMBLE, Appellant, v. THOMAS LYONS, Appellee
• Court: Iowa Supreme Court

169 N.W. 117

184 Iowa 804

C. W. KEMBLE, Appellant, v. THOMAS LYONS, Appellee

No. 31973

Supreme Court of Iowa, Des Moines

October 25, 1918

Appeal from Guthrie District Court.--J. H. APPLEGATE, Judge.

ACTION for damages for alienating the affections of plaintiff's wife. There was a directed verdict for the defendant, and plaintiff appeals.

Affirmed.

D. G Baker and Weeks & Vincent, for appellant.

Milligan & Moore, Z. A. Church, and J. W. Morris, for appellee.

EVANS J. PRESTON, C. J., LADD and SALINGER, JJ., concur.

OPINION

EVANS, J.

I.

Only one question is presented for our consideration on this appeal. That involves the construction of Section 245-a, Code Supplement, 1913. The trial below was had in the February term, 1917. At that time, plaintiff's wife was deceased. The plaintiff offered in evidence a certified transcript of certain testimony given by her at a former term of the court. This testimony was given on a trial of the same cause, which trial, however, was interrupted by a continuance of the cause. Such continuance was granted upon the application of the plaintiff, and while the cross-examination of plaintiff's wife, as a witness, was pending and uncompleted.

To be more specific, the direct examination of the witness was had on Saturday, October 21, 1916. It was completed only a few minutes before adjourning time. The cross-examination was begun. Only a few preliminary matters had been inquired about, when the court announced an adjournment until Monday afternoon. Upon the re-assembling of the court, Monday afternoon, the plaintiff applied for and obtained a continuance. The continuance necessarily terminated the examination of the witness. The result was that no cross-examination was had upon the substance of the testimony of the witness. The transcript of the testimony offered in evidence, therefore, by the plaintiff upon the subsequent trial contained nothing of substance, except the direct testimony of the witness. Was it admissible? The trial court ruled that it was not. The appellant concedes, in argument, that it was not admissible under any general rule of evidence independent of statute. He bases his contention wholly upon Section 245-a of our statutes. We shall, therefore, confine our attention to a consideration of the statute, which is as follows:

"That the original shorthand notes of the evidence or any part thereof heretofore or hereafter taken upon the trial of any cause or proceeding, in any court of record of this state, by the shorthand reporter of such court, or any transcript thereof, duly certified by such reporter, when material and competent, shall be admissible in evidence on any retrial of the case or proceeding in which the same were taken, and for purposes of impeachment in any case, and shall have the same force and effect as a deposition, subject to the same objections so far as applicable. It shall be the duty of any such reporter, upon demand by any party to any cause or proceeding, or by the attorney of such party, when such shorthand notes are offered in evidence, to read the same before the court, judge, referee, or jury, or to furnish to any person when demanded a certified transcript of the shorthand notes of the evidence, of any one or more witnesses, upon payment of his fees therefor. When the reporter taking such notes in any case or proceeding in court has ceased to be the reporter of such court, any transcript by him made therefrom, and sworn to by him before any person authorized to administer an oath as a full, true, and complete transcript of the notes of the testimony of the witness, a transcript of whose testimony is demanded, shall have the same force and effect as though duly certified by the reporter of said court. When any exhibit, record, or document is referred to in such shorthand notes or transcript thereof, the identity of such exhibit, record, or document, as the one referred to by the witness, may be proven either by the reporter, or any other person who heard the evidence of the witness given on the stand. No portion of the transcript of the shorthand notes of the evidence of any witness shall be admissible as such deposition, unless it shall appear from the certificate or verification thereof that the whole of the shorthand notes of the evidence of such witness, upon the trial or hearing in which the same was given, is contained in such transcript, but the party offering the same shall not be compelled to offer the whole of such transcript."

The appellant bases his argument upon two general propositions:

(1) That, by the terms of the statute, the transcript was admissible, even though the examination was incomplete, and even though no opportunity for cross-examination was had.

(2) That the defendant had an opportunity for cross-examination,...