Quill v. Carpenter

• Decision Date: 21 March 1939
• Citation: 5 A.2d 241,40 Del. 1
• Court: Delaware Superior Court
• Parties: JOSEPH QUILL v. WILLIAM CARPENTER, and others

5 A.2d 241

40 Del. 1

JOSEPH QUILL v. WILLIAM CARPENTER, and others

Superior Court of Delaware, New Castle County

March 21, 1939

Superior Court for New Castle County, No. 5, January Term 1938.

This was an action at law against a number of minor defendants for whom Guardians ad litem were appointed. After the cause was ready for trial a commission was issued to take testimony on behalf of the plaintiff by deposition upon oral examination and without written interrogatories. The commissioner fixed a hearing to be held at Easton, Pa., and a subpoena was issued by the Court of Common Pleas of Northampton County, Pennsylvania, requiring William Carpenter, one of the defendants, to appear before the commissioner and give his testimony. Carpenter appeared but upon the advice of counsel, refused to testify. Subsequently a petition was filed by the Guardion ad litem for Carpenter, praying the Court which had originally issued the order appointing the Commissioner to take the testimony by deposition to so amend and limit its order as to exclude from the operation of said order the taking of depositions of parties defendant to the cause.

The prayer of the petition is granted.

David J. Reinhardt, Jr., for plaintiff.

Aaron Finger for defendants.

RODNEY and SPEAKMAN, J. J., sitting.

OPINION

RODNEY, J.

In Levy v. Kirby, 9 W. W. Harr. (39 Del.) 109, 192 A. 696, and Levy v. Kirby, 22 Del. Ch. 274, 196 A. 816, 817, the Superior Court and the Court of Chancery, respectively, considered the rights of one party to take deposition of an adverse party outside of the state, said deposition to be taken de bene esse. In both cases, on the facts there present, it was determined that such depositions could not be taken. In both cases the origin and history of the taking of testimony by deposition was dealt with and will not be here repeated. In Laurel Printing & Pub. Co. v. James, 29 Del. 185, 6 Boyce 185, 97 A. 601, it was held that the testimony of a plaintiff could not be taken by deposition where no unusual circumstances were shown, and in State to Use of Jefferson v. Stidham, 30 Del. 520, 7 Boyce 520, 108 A. 740, 108 A. 740, the testimony of the plaintiff, then eighty-one years old and unable to attend the trial, was taken de bene esse.

The Constitution of Delaware, so far as here material, provides by Article 4, § 24:

"In civil causes, when pending, the Superior Court shall have the power * * * of obtaining evidence from places not within the State."

Viewing this provision as a rule making power in the Superior Court, if such grant of power be necessary, it is important that we see what the Rules of Court provide concerning depositions. Depositions by oral examination are covered by Rules 62-69. These Rules make no express reference concerning examination of parties, whether adverse or otherwise. They do, however, make certain statements having a tendency of indicating that adverse parties were not considered as witnesses within the contemplation of the Rules. These Rules provide for an order upon the application, in writing, of either party to a cause, for taking the testimony of witnesses on behalf of said party; examination of witnesses shall be subject to cross-examination and reexamination by the parties; after the examination of a witness is finally closed such witness may not again be examined on the same facts, without the consent of the adverse party; the testimony must be certified in the absence of the parties or their attorney choosing to attend; if objection is made to the competency of a witness or question the Commissioner shall state his opinion upon the objection, to the parties.

Then, too, under the ordinary practice concerning witness fees a distinction has always been observed between parties and witnesses, and a party has never been deemed to be entitled to such fees.

Certain general principles furnish reasons which make the unlimited examination of adverse parties by deposition unadvisable and doubtful. Courts do not favor so-called "fishing expeditions", and examinations on deposition before commissioners unskilled in the law are not apt to be always confined to strictly legal testimony and the opposite party may elicit, under form of...