Scott v. Delk
| Decision Date | 01 January 1855 |
| Citation | 14 Tex. 341 |
| Parties | BENJAMIN SCOTT v. D. B. DELK. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Objections to depositions on the ground that the cross-interrogatories have not been fully answered go to the manner of taking and should be in writing, and notice thereof given to the opposite party before the trial commences.
Appeal from Smith.
S. Reeves, for appellant.
B. T. Selman, for appellee.
The deposition of the witness Mitchell was excluded on the ground that the cross-interrogatories propounded by the plaintiff were not answered. The answers of the witness, it is true, were not repeated at length to the cross-interrogatories, for the reason that the interrogatories contained nothing touching which he had not fully answered in his responses to the interrogatories in chief, and he answered the cross-interrogatories by simply referring to his previous answers, where the information sought was given. Perhaps in strictness the plaintiff had a right to have the answers repeated to his cross-interrogatories in the form in which they were propounded. But his objection to the depositions would certainly have been entitled to be viewed more favorably if they had not been reserved until the depositions were offered in evidence upon the trial, thus depriving the defendant of the opportunity of supplying the defect in his evidence. The plaintiff first objected to certain of the interrogatories and answers, because, as he alleged, the questions were leading. The objections having been sustained--whether rightly or not it is not material now to inquire--he then objected to the reading of any portion of the depositions on the ground indicated. The objection seems not previously to have occurred to the plaintiff, and under the circumstances it may well have taken the defendant by surprise. The testimony of the witness Hill, as to the admissions made by Mitchell, the payee, before the transfer of the note, were rightly excluded when objected to by the plaintiff, on the ground that Mitchell himself had been made a witness by the defendant by taking his deposition, and his testimony was better evidence than his declarations. But by the exclusion of the deposition of Mitchell the defendant was wholly deprived of the evidence relied on to establish his defense. It seems to us that there may be reason to apprehend that justice has not been done. The surprise was made the ground of an application for a new trial; and under the circumstances, and the more...
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Parker v. Chancellor
...and that notice thereof should be given before the commencement of the trial. Railway Co. v. Ivy, 71 Tex. 409, 9 S. W. Rep. 346; Scott v. Delk, 14 Tex. 341; Mills v. Herndon, 60 Tex. 353. It appears by the record that the trial judge delivered to the jury a charge in writing, that had been ......
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Hopkins v. Clark
...disregarded this objection, it not being in writing and notice given thereof, as is contended for upon the authority of the case of Scott v. Delk, 14 Tex. 341, still the exception taken would not avail the appellant. Because the answer, if admitted, would have been cumulative, and from the ......
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Pauska v. Daus
...agent,” the objection goes to “the manner of taking depositions,” and it must be in writing. Pas. Dig. art. 3742, note 85; 110 Tex. 524;14 Tex. 341;15 Tex. 113. The object of the rule is to prevent technical objections and surprise. The amendatory act of 17th December, 1861, gives interest ......
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Curlin v. Hendricks
...of the cause on the former appeal the court reviewed at some length, and with much well-founded criticism, the case of Boze v. Davis, in 14 Tex. 341. And it may not be improbable that the review of that case, and the strong intimation of what might be the ruling of the court in this cause, ......