Reichers v. Dammeier
| Citation | 90 N.E. 644,45 Ind.App. 208 |
| Decision Date | 26 January 1910 |
| Docket Number | 6,676 |
| Parties | REICHERS v. DAMMEIER |
| Court | Indiana Appellate Court |
From Porter Circuit Court; Willis C. McMahan, Judge.
Action by Ernest H. Dammeier against Fred D. Reichers. From a judgment for plaintiff, defendant appeals.
Affirmed.
James K. Stinson, Frank Meeker and E. D. Crumpacker, for appellant.
N. L Agnew and Bruce & Bruce, for appellee.
This action was brought by the appellee against the appellant to recover damages for an alleged assault and battery committed by the appellant on the appellee.
The case was put at issue, and two jury trials were had, the first resulting in a disagreement of the jury, the last, in a verdict favorable to the appellee. Appellant's motion for a new trial was overruled, and judgment rendered upon the verdict.
The error relied on for a reversal is the action of the court below in permitting appellee to read in evidence the testimony of a witness, given at the former trial of the cause, and taken down by the official stenographer--the witness being absent at the trial, and a nonresident of the State--and the giving by the court of instructions six, nine and twelve.
The question of the admissibility in evidence of the testimony given on a former trial by an absent witness, who is a nonresident of the State, is an open question in this State never having been authoritatively presented to or decided by the Supreme or Appellate Court. Wabash R. Co. v. Miller (1902), 158 Ind. 174, 61 N.E. 1005; Wabash R. Co. v. Miller (1901), 27 Ind.App. 180, 60 N.E. 1127; Schearer v. Harber (1871), 36 Ind. 536.
It is appellant's contention that at the common law it was not competent to give in evidence the testimony of a witness taken at a former trial, unless the witness was dead, insane or beyond seas, and that the term "beyond seas" means outside of the national realm, and does not apply to a witness whose residence is known, and is in some other part of the realm.
It is argued that the statute makes ample provision for taking the depositions of nonresident witnesses, and that therefore the rule invoked to admit this testimony is not applicable, and some authorities are cited to support this contention. There is a conflict in the decisions of the court's of last resort as to the proper meaning of the term "beyond seas," as used in the statute of limitations; but in this State the term "beyond seas," when used in this connection, is held to mean beyond the limits of the State. Stephenson v. Doe (1847), 8 Blackf. 508. And as applied to the question here presented, it is almost universally held that where a witness is a nonresident of the State, and absent at the time of the trial, his former testimony may be proved. 2 Wigmore, Evidence, § 1404, and cases cited; 5 Ency. Ev., 904, and cases cited.
It is true the statutes of this State provide for the taking of depositions of nonresident witnesses, but the courts of this State have...
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