Parsons v. Parsons

• Decision Date: 31 January 1870
• Citation: 45 Mo. 265
• Parties: WM. M. PARSONS, Defendant in Error, v. AGNES J. PARSONS, Plaintiff in Error.
• Court: Missouri Supreme Court

45 Mo. 265

WM. M. PARSONS, Defendant in Error,

v.AGNES J. PARSONS, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1870.

Error to First District Court.

T. Shackleford, for plaintiff in error.

I. The deposition of Isaac Parsons ought to have been admitted. The same subject-matter was in dispute, and there was a privity in the parties. (1 Greenl. Ev., §§ 553, 554; Cabanne et al. v. Walker, 31 Mo. 274; Jaccard et al. v. Anderson, 37 Mo. 91.)

II. The deposition can not be excluded under the statute. (2 Wagn. Stat. 1372, § 1; 44 Me. 21; 45 Me. 461; Green et al. v. Gould, 3 Allen, 465; Mathewson v. Estate of Sargeant, 36 Verm. 142.)Philips & Vest, for defendant in error.

I. The deposition of Isaac Parsons, deceased, was properly excluded, for the reason that the deposition was taken in another suit between different parties, and involving different issues. The appellant was not privy, in law, estate, or blood, to her deceased husband. (2 Coke on Littleton, 597; 1 Washb. on Real Prop. 138, note 2.)

II. The deposition was properly excluded, because the court below had excluded the testimony of plaintiff, for the reason that Isaac Parsons, the other party to the transaction, was dead; and if the court had then admitted the deposition of the deceased party, the object and intention of our statute would be defeated. (2 Wagn. Stat. 1372, § 1.) Whilst the statute properly excludes the living party as a witness, it surely does not mean to do him the injustice of sealing his mouth, and then admitting the testimony of the other party because dead.

WAGNER, Judge, delivered the opinion of the court.

Ejectment tried in the Saline Circuit Court for the recovery of a tract of land, where plaintiff had judgment, which was affirmed on appeal in the District Court. The main point presented for consideration here is the action of the court in its rulings as to the admissibility of testimony, though exceptions are also taken in reference to the instructions.

The action was against Agnes, the widow of Isaac Parsons, deceased; and the plaintiff, who was the son of Isaac, claimed the premises by virtue of a deed, which he alleged was executed and delivered to him by the deceased in his lifetime. A prior suit was commenced by this plaintiff against his father Isaac, when living, and, in that suit, Isaac's deposition was taken in his own behalf. During the pendency of the suit the defendant Isaac died, and it was discontinued, and it is now again brought for the same land, against the widow in possession, who claims title under a conveyance from her deceased husband.

On the trial of the cause, the deposition of the deceased party and witness was offered in evidence on the part of the defendant, and the plaintiff objected to its reception. The objection was sustained, and it was ruled out. The deposition, with the record in the prior suit, had been filed in the pending action.

It has long been held in this State that depositions taken in a former suit between the same parties, may be read in evidence, unless there be other objections than that of having been taken in the former suit. (Tindall v. Johnson, 4 Mo. 113.) But if a party wishes to avail himself of it as evidence, he should either file it in the suit, or give the opposite party notice that he intends to use it. (Samuel v. Withers, 16 Mo. 532; see, however, Cabanne v. Walker, 31 Mo. 214.) And the testimony of deceased witness at a former trial of a case is admissible in evidence, if the same issues are presented, and his testimony was directed to the issues, thus giving an opportunity for cross-examination. (Jaccard v. Anderson, 37 Mo. 91.)

As to the issues being the same in this action with the previous one instituted by the plaintiff against Isaac Parsons, there is no doubt, and the record shows that full opportunity was afforded by the plaintiff for cross-examination. But it is insisted that the parties were not the same, and therefore the evidence was inadmissible. Mr. Greenleaf says “that in regard to the admissibility of a former judgment in evidence, it is generally necessary that there be a perfect mutuality between the parties--neither being concluded, unless both are alike bound. But with respect to depositions, though this rule is admitted in its general principle, it is applied with more latitude of discretion, and complete mutuality or identity of all parties is not required. It is generally deemed sufficient if the matters in issue were the same in both cases, and the party against whom the deposition is offered had full power to cross-examine the witness.” (1 Greenl. on Ev., § 553.) In the case of judgments the rule does not apply exclusively to the parties of record, but extends to all those who are in privity with them. Therefore, all privies, whether in...