Winner v. Brandon

• Decision Date: 09 November 1903
• Court: Mississippi Supreme Court
• Parties: MAURICE WINNER ET AL. v. JOHN BRANDON, ADMINISTRATOR

35 So. 192

82 Miss. 767

MAURICE WINNER ET AL. v. JOHN BRANDON, ADMINISTRATOR

Supreme Court of Mississippi

November 9, 1903

HON STONE DEVOURS, Chancellor.

John Brandon, administrator of the estate of William Brandon deceased, appellee, was complainant or petitioner in the court below; Winner and others, appellants, doing business under the name of Winner & Meyer, were defendants there. From a decree adverse to them, defendants appealed to the supreme court.

William Brandon died November 30, 1899, and on the 14th day of that month letters of administration on his estate were granted to John Brandon. On the same day an appraisement was returned in which it was stated that there were two bales of cotton in the hands of Winner & Meyer that belonged to the estate. This cotton was not turned over to the administrator by Winner &amp Meyer, and he filed his application against them, requiring them to show cause why they should not turn over the cotton. Winner & Meyer answered this petition. At the May term, 1903 the cause came on for hearing, and several witnesses were introduced by the administrator, who testified orally. Winner & Meyer objected to the introduction of this oral testimony because no notice had been given them that complainant would examine his witnesses in open court, and no agreement in writing had been entered into between the complainant or petitioner and defendants that the witnesses might be introduced in open court. The court overruled the objection, and the witnesses were permitted to be examined in open court.

Reversed and remanded.

Ethridge & McBeath, for appellant.

The learned chancellor erred in admitting the oral testimony over objections of counsel for appellant. Sec. 1764, Code 1892, provides that: "In all proceedings in matters testamentary and of administration, in minor's business, and in cases of persons of unsound mind, and on the hearing of motions to confirm sales, and in similar cases, witnesses may be produced and examined in open court, or their depositions may be taken as in other cases in chancery court. In all eases where a party shall desire to have the witnesses examined in open court, he shall, before any depositions may be taken, file a notice to that effect, or the parties may agree in writing in any case to have all or a part of the witnesses examined in open court."

But in this case counsel filed no notice to the effect that he would take the testimony of his witnesses in open court, and there was no agreement in writing between the parties that the witnesses might be examined in open court. It occurs to us that section 1764 should not need the supreme court of our state to construe it, as it is very plain. But the court in the case of Cox v. Kyle, 75 Miss. 667, which was a case coming under section 1764, Code 1892, says:

"The want of any proof of the necessity or the propriety of the sale is apparent upon the face of the record. A recital in the decree of the taking of oral proof does not cure the...