Merchants' Nat. Bank v. Stebbins
| Decision Date | 16 February 1898 |
| Citation | 74 N.W. 199,10 S.D. 466 |
| Parties | MERCHANTS' NAT. BANK v. STEBBINS. |
| Court | South Dakota Supreme Court |
Appeal from circuit court, Lawrence county; A. J. Plowman, Judge.
Action by the Merchants' National Bank against William B Stebbins, impleaded with others, to recover certain sums of money loaned defendant. From a judgment in favor of plaintiff, defendant Stebbins appeals. Reversed.
Edwin Van Cise, for appellant. Martin & Mason, for respondent.
By amending the original summons and complaint pursuant to an order of court, defendant Stebbins was made a party to this action, instituted to recover certain sums of money aggregating $7,065.83, exclusive of interest, which it is alleged plaintiff loaned defendants, Fox, Guild, Bullock, and Stebbins, as co-partners engaged in numerous business ventures under various titles designated. After personal service of the summons upon the defendant Stebbins was vacated and set aside for good cause shown, service upon him was obtained by attachment and publication, and, in default of an answer or any appearance upon his part, a trial of the cause resulted in a dismissal of the complaint as to the defendant Guild, upon the ground of the insufficiency of the evidence, and a disagreement of the jury as to the issues raised by the answers of his co-defendants. Later, by leave of court, the defendant Stebbins, answering, denied every allegation of the complaint except plaintiff's corporate existence, and, when the case was again reached, his remaining co-defendants, Seth Bullock and Stewart A. Fox, as the administrator of the estate of Alvin Fox, deceased withdrew from the case, and the trial proceeded, resulting in a judgment of $10,140.47 against said defendants Fox, Bullock, and Stebbins, from which the latter alone appeals.
The death of Alvin Fox being suggested at the trial, and the absence of Daniel C. Baker from the jurisdiction of the court being shown, a longhand transcript of their testimony as adduced at the former trial on plaintiff's behalf, and duly certified by the circuit court reporter to be a correct transcript of his shorthand notes of their evidence, was offered in support of the complaint, and admitted in evidence over the objection of counsel for appellant "that the testimony of a witness taken on a former trial is inadmissible on any reported identification of the stenographer, and can only be admitted upon the competent testimony of a witness called to the stand, who heard it when given." The objection was properly overruled. By chapter 87 of the Laws of 1893 the judge is authorized to direct the court reporter to The theory upon which courts admit such testimony in the absence of a statute like ours, authorizing the practice, is that stenographic reporters, charged with the duty of taking down all the testimony of the witnesses, together with the rulings of the court thereon, are reliable agencies, whose transcripts are authentic, and, in case of subsequent absence or death of a witness, are of great value, and oftentimes the best evidence of which the case, in its nature, is susceptible. It is well settled that the former testimony of an absent or deceased witness may be repeated at a later trial, and, even in a criminal prosecution under a statute silent upon the point, a reporter's transcript was admitted in evidence against the defendant, and upon appeal held to be no violation of the...
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