Nave v. Nave
| Decision Date | 30 November 1855 |
| Citation | 7 Ind. 97 |
| Parties | Nave v. Nave |
| Court | Indiana Supreme Court |
From the Fountain Circuit Court.
The decree is affirmed, with 3 per cent. damages and costs.
H. S Lane, S. C. Willson and Z. Baird for appellant.
R. C Gregory and R. Jones for appellee.
Action for divorce and alimony by the wife against the husband under the statute of 1843, alleging cruel and inhuman treatment as the ground of divorce. The husband answered, denying the charges in the bill, and setting up, by way of cross bill, abandonment by the wife, for which he claimed a divorce. The Circuit Court decreed a divorce on the wife's bill, and awarded alimony, from which the husband appeals.
Two questions are made in this Court, one as to the admissibility of the plaintiff's depositions, the other upon the sufficiency of the evidence to sustain the decree.
The plaintiff's evidence consisted chiefly of depositions taken de bene esse, as the bill of exceptions states, to the reading of which, at the trial, the defendant objected, unless the plaintiff would show that the witnesses were unable to attend and testify in person. The objection was overruled, and the depositions were received.
The statute of 1843, p. 602, sec. 45, provides that the practice and proceedings in suits for divorce, shall be the same as in other cases in chancery, with certain exceptions. Among the exceptions, it is provided that witnesses may be examined orally in Court, as in trials at law.
The statute authorizing depositions in cases at law, provides that they may be taken when a witness is about to leave the state, is aged, sick or infirm; but that a deposition so taken can not be read at the trial, unless the cause for taking continues, or unless the witness is insane, out of the state, or dead. R. S. 1843, pp. 720, 722, ss. 265, 279.
The act regulating practice in chancery, (R. S. 1843, p. 842, s. 68,) provides, that depositions may be taken in like manner, and subject to the same rules and regulations, as in suits at law; and the 67th section provides that the complainant may take depositions in thirty days after the subpoena is served or publication made, and the defendant as soon as his answer is filed. See Phillips v. Phillips, 5 Ind. 190.
Under the statute regulating the practice in actions for divorce, the plaintiff had her election to examine the witnesses orally in Court, or to take their depositions. The cases in which the word "may" imports "shall," are those in which public interests and rights are concerned, and where the public or third persons have a claim de jure that the power should be exercised. Newburgh Turnpike Company v. Miller, 5 Johns. Ch. 101. No such rights are involved in this question of practice, but a privilege is given to parties litigant for their benefit or convenience, which they may exercise or not at their election. Malcom v. Rogers, 5 Cow. 188.
These depositions were taken de bene esse, and the question is, could they be read, regardless of the condition?
In the English chancery, depositions could not be taken...
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