Reed v. Wilmington Sav. Bank

• Decision Date: 01 March 1915
• Citation: 93 A. 265,89 Vt. 6
• Parties: ARTHUSA CLARK'S ADM'R v. WILMINGTON SAVINGS BANK
• Court: Vermont Supreme Court

93 A. 265

89 Vt. 6

ARTHUSA CLARK'S ADM'R v. WILMINGTON SAVINGS BANK

Supreme Court of Vermont

March 1, 1915

January Term, 1915.

GENERAL ASSUMPSIT. Pleas, the general issue and payment. Trial by jury at the April Term, 1914, Windham County. Stanton, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The deposition in question was filed in the Windham County Clerk's office on December 31, 1910. The opinion states the case.

Judgment reversed and cause remanded.

O E. Butterfield and Chase & Chase for the defendant.

Homer Sherman and E. W. Gibson for the plaintiff.

Present POWERS, C. J., WATSON, TAYLOR, SLACK, AND HEALY, JJ.

OPINION

SLACK

This is an action of general assumpsit, brought to recover the amount of a deposit which the plaintiff's intestate formerly had in the defendant bank. Plea, general issue and payment, and special plea of payment to one Charles Clark upon the written order of the intestate.

On the first day of January, 1908, the plaintiff's intestate, Arthusa Clark, had a deposit in the defendant bank, amounting to $ 548.34. On that day Charles Clark, a stepson of the intestate, presented to the defendant an order in writing of the following tenor, to wit: "The Wilmington Savings Bank. Upon presentation of my deposit book, pay to Aaron L. Clark or order, all the money due on book No. 2677, of my deposit in your bank. Arthusa V. Clark, depositor. John W. Cram, witness. Dated December 30, 1907," together with the deposit book of the intestate described in said order, and thereupon the defendant paid him the amount of said deposit. The Aaron L. mentioned in said order was the husband of the intestate, and the father of Charles. On the day that said order purports to have been executed, and on the day when it was paid, both the intestate and her husband were ill with typhoid fever, and the intestate died January 10, 1908. The defendant's evidence tended to show that the intestate gave this order to her husband and that Charles acted for him in demanding and receiving said money, and that the defendant was justified in paying the money to Charles. The plaintiff's evidence tended to show that the intestate was not mentally responsible when she signed said order, and did not know the nature of her act; that her signature thereto was procured by the wrongful and fraudulent act of Charles; that Aaron never had any knowledge of said order until long after the defendant had paid the same; that Charles was not authorized by Aaron, or anyone else, to draw said money from said bank, and that the bank did not use due care and diligence, in paying the order, to protect the interest of the intestate.

A deposition of Aaron L., taken in perpetuam in Massachusetts on the 27th day of August, 1910, but not returned and filed in the proper clerk's office until December 31, following, was received in evidence, subject to defendant's objection and exception, that it never had been recorded as required by our statute.

Sections 1625-1630 P. S. prescribe the manner of taking testimony in perpetuam, in this State. The latter section provides that "the depositions taken and certified as prescribed in the five preceding sections, with the certificate thereon, and order of notice and affidavit appended thereto, shall, within ninety days after the taking thereof, be recorded in the office of the clerk of the county where the land lies, if the deposition relates to real estate, otherwise in the county where the matter in controversy is pending or likely to arise. The deposition so taken and recorded, or a certified copy thereof, may be used," etc.

It is urged by the plaintiff that this statute as to recording is merely directory. He loses sight of the well established doctrine that the authority to take testimony by way of deposition is in derogation of the rules of the common law and has always been strictly construed. This objection having been interposed, it was necessary for him to show that this requirement of the statute had been complied with, or the testimony was not admissible. Johnson v. Perry, 54 Vt. 459; Bell v. Morrison, 1 Pet. (U. S.) 355, 7 L.Ed. 174; Lawrence v. Finch, 17 N.J.Eq. 234; Emmett v. Briggs, 21 N.J.L. 53; The Saranac, 132 F. 936; Maultsby v. Carty, 30 Tenn. 361; Stevenson v. Ill. Cen. R. Co., 163 S.W. 747; Simpson v. Carleton, 83 Mass. 109, 79 Am. Dec. 707. This he failed to do, as it does not appear either from the exceptions, or the transcript, which is made a part of the case, that this deposition had ever been recorded.

The plaintiff further contends that the filing of depositions taken under this statute is a compliance with the requirement that they be recorded. Such, however, does not seem to have been the intention of the framers of our present statute on this subject.

The language is clear, and positive. It provides that such depositions shall be recorded, and that when so recorded they may be used in...