McCollum v. Birmingham Post Co.

• Decision Date: 13 March 1953
• Docket Number: 6 Div. 379
• Parties: McCOLLUM v. BIRMINGHAM POST CO.
• Court: Alabama Supreme Court

Page 689

65 So.2d 689

259 Ala. 88

McCOLLUM v. BIRMINGHAM POST CO.

6 Div. 379.

Supreme Court of Alabama.

March 13, 1953.

Rehearing Denied May 28, 1953.

Jas. A. McCollum, Tuscaloosa, pro se.

Leader, Tenenbaum, Perrine & Swedlaw, Birmingham, for appellee.

Wilkinson & Skinner, Birmingham, amicus curiae.

BROWN, Justice.

This appeal is by the plaintiff from a final judgment of the Circuit Court of Jefferson County dismissing the plaintiff's suit,--a common law action for libel against the appellee--filed February 18, 1950. The record shows that the only pleading on file, aside from the plaintiff's complaint consisting of a single count, was a demurrer filed by the defendant, which in legal effect admitted the facts alleged in the complaint and challenged the sufficiency of the facts pleaded to constitute a cause of action.

So far as appears the case had not been entered on the trial calendar or set for trial on the merits or for settlement of the pleadings.

In another proceeding termed, 'Motion to Perpetuate Testimony,' filed on May 23, 1951, and prosecuted by the defendant under the provisions of Article 10, Chapter 10, Code of 1940, Tit. 7, embracing §§ 491-498 et seq.; Ex parte Cross, 247 Ala. 85, 22 So.2d 378, the defendant sought to perpetuate plaintiff's testimony as a witness as evidence in the pending libel suit. Section 491, Title 7, Code of 1940, was amended by an Act of the Legislature of Alabama approved June 23, 1949, Gen. Acts of Ala.Reg.Sess.1949, p. 149, as follows: 'The testimony of a witness may be taken conditionally and perpetuated as provided in this article notwithstanding such witness may be a party to the suit in fact or in anticipation.' [Italics supplied.] The purpose of this amendment was to avoid the holding of this court in Ex parte Brooks, 249 Ala. 606, 32 So.2d 534; Winter v. Elmore, 88 Ala. 555, 7 So. 250, and other cases dealing with the right to perpetuate the testimony of a witness. Notwithstanding the fact that the person proceeded against is a party to a pending suit, as the proceeding relates to him, he is a mere witness.

The application or motion in the last mentioned proceeding as we have shown, is no part of the proceeding in the common law action of libel. It is addressed 'to the Honorable Judges of Jefferson County, Alabama,' and alleges:

'Comes the defendant in the above styled cause and moves that an order be entered requiring the plaintiff, James A. McCullom, to appear and give testimony as provided by the Code of Alabama of 1940, as amended and for grounds for said motion, shows unto this Honorable Court the following:

'1. The movant is the party defendant in the above styled cause.

'The testimony of James A. McCollum, whose residence is Tuscaloosa, Alabama, is necessary to the defense of this suit.

'3. That the said James A. McCollum has knowledge of the facts and it is expected generally to prove by said party the incidents which occurred on or about the 14th day of February, 1949, out of which incidents arose the newspaper article that was published and for which this suit has been brought. The same James McCollum has knowledge of the facts concerning a trip made by him to Bessemer, Alabama, on or about the 14th day of February, 1949; the means of transportation used in said trip; where he obtained the automobile; on whose behalf the automobile was obtained; who drove the automobile to Bessemer on said occasion; who were the passengers in the car on said occasion; who made the arrangements for the trip to Bessemer on said occasion; who was present when the automobile was purchased or rented for the purpose of taking said trip; who paid for the cost of the trip; what route was followed from Tuscaloosa to Bessemer; what took place after the arrival in Bessemer; the places that the witness visited in Bessemer; where he first saw Leona Wyatt; what took place at the time he first saw Leona Wyatt; how long Leona Wyatt was in the presence of the witness thereafter; what was said by the witness to Leona Wyatt; what Leona Wyatt said to the witness; who was present at the time the witness was with Leona Wyatt; where the witness went with Leona Wyatt; the details as to how Leona Wyatt got in the car where the witness was; who drove the automobile away from the place where Leona Wyatt got into same; where they went after Leona Wyatt got in the automobile; the details of the trip to Greensboro, Alabama, or or about the 14th day of February, 1949; all conversations which took place between the parties on said trip; what the purpose of taking said trip; who was seen in Greensboro; how long the parties remained in Greensboro; the details of the return trip to Bessemer and the place where he last saw Leona Wyatt on said occasion; James A. McCollum being an attorney, the names of the parties of Leona Wyatt's family whom he represented; on what occasions he represented them; for what purpose he represented them; whether or not he was representing them on the trip made by him on the 14th of February, 1949; for whom he was acting on said trip; whether he was acting at the request of any parties on the date of said trip; the exact time that was consumed in taking said trip and the exact time consumed in each stop made during the day and night; whether the witness, was arrested on the 14th day of February, 1949, or any day subsequent thereto; whether he made bond upon said arrest; what charge was made against him; whether he was indicted by the Grand Jury; whether habeas was served upon him after the indictment issued by the Grand Jury; what took place at the trial of said proceeding; all facts and knowledge which James A. McCollum has concerning the truthfulness or untruthfulness of the statements made in the newspaper articles which are the basis of this litigation; the names and addresses of the clients of James A. McCollum prior to the 14th day of February, 1949; the names and addresses of his clients whom he claims ceased to employ him after the publication of said articles; the nature of the business for which each of said clients employed him; the amount of remuneration that he lost thereby and all facts concerning the actual damages claimed in the complaint.

'Wherefore, defendant moves the Court to make and enter an order requiring James A. McCollum to appear at the Circuit Court of the Tenth Judicial Circuit of Alabama, in Birmingham, at such time and place as may be fixed by this Court, to be orally examined by the defendant, and provide in said order that upon failure of plaintiff to so appear and orally testify at said time, a judgment of dismissal be entered in said cause in favor of the defendant and against the plaintiff.'

An attempt was made to verify the facts stated in said motion by Kenneth Perrine, as attorney for defendant in the action at law, who subscribed to the oath before Judge McElroy to the effect that, 'the defendant in the above styled cause is a party to this suit and the above facts stated in the above motion are true to the bast of his knowledge and belief.' [Italics supplied.]

Notwithstanding, the Judge entered the following order:

'Upon consideration of the foregoing petition and affidavit, said petition is hereby granted and Order is hereby made and entered, allowing the examination of James A. McCollum on the 18th day of June, 1951, at the Jefferson County Courthouse in Birmingham, Alabama, at 10:00 o'clock A. M., on said date, and that said examination shall continue until completed before the undersigned Judge of said Circuit.

'It is ordered that notice of time and place of such examination be given James A. McCollum as provided by Section 498, Title 7, Code of Alabama of 1940, as amended.' [We note here that the cited section only applies to nonresident witnesses.]

The record shows that the order was served on the witness James A. McCollum by the Sheriff of Tuscaloosa County on the 5th day of June, 1951, through his deputy. Thereupon Judge McElroy entered the following order:

'Order On Motion To Perpetuate Testimony. 6/18/51 On Motion of ptff, the time for the taking of testimony is continued to and set for 11 A. M. on June 25, 1951.'

The next step taken, as shown by the record, was the minute entry, showing the judgment of the court:

'Minute Entry. On this the 25th day of June, 1951, came the defendant by its attorneys, and the plaintiff fails to appear to give testimony as ordered by the court, now on motion of defendant. It is ordered and adjudged by the court that this cause be and the same is hereby dismissed from this court on account of such failure by plaintiff and that the plaintiff be taxed with all costs herein accrued for which execution may issue.'

'The practice of introducing or securing evidence by deposition taken in advance of the trial was unknown to the common law, and the right to do so in actions at law is dependent upon statutory provision therefor, * * *.' 16 Am.Jur. p. 700, § 3 et seq.; Goodwater Warehouse Co. v. Street, 137 Ala. 621, 34 So. 903.

The power to order the examination of witnesses orally in advance of trial is conferred, not on the court, but on the Circuit Judge, Probate Judge and the Register of the Circuit Court and such power is statutory and limited. Code of 1940, Title 7, §§ 491-497. And the statutes conferring such power must be strictly adhered to.

Section 497, Title 7, Code of 1940, provides as follows:

'If a trial be had between the persons described in the affidavit as parties, actual or expectant, or their successors in interest, upon proof of the death or insanity of the witness at the time of such trial, or that he is not within the jurisdiction of the court, the deposition, or a certified copy thereof, may be given in evidence by either party.'

The statute requires that the facts made the basis of the proceeding must be stated and verified by oath by the applicant. Code of 1940, Title 7, § 491 et seq.; 2 C.J.S., pages 982-983, Affidavits, § 26. The affidavit...