Harris v. Leavitt

Lipscomb, J. The error assigned is the rejection by the Court below, of evidence offered by the appellants, who were plaintiffs in the suit. The bill of exceptions, taken by the plaintiffs and allowed and signed by the Court, shows “ That “ the plaintiffs offered in evidence the answers of • Palmer, to “ the interrogatories annexed to the petition, and also the de- “ position of said Palmer, taken by the plaintiffs, on commis- “ sion, which were objected to by the defendant's counsel and “ excluded by the Court; to which ruling and decision plain- “ tiffs excepted. The plaintiffs then further offered the depo- “ sitions of Crosland, Wetter and Wendell, on file, which had “ been taken by the defendant, returned into Court and open- “ ed, but which were objected to by the defendant’s counsel, “ on the ground that they were defendant’s proof and could “ not be used by the plaintiffs. The Court decided that, unless “ the interrogatories had been crossed by the plaintiffs, they “ were not entitled to use the depositions in evidence, and it “ not appearing that said interrogatories had been crossed, the “ Court excluded the depositions, to which plaintiff’s counsel “ excepted.” These last depositions, of the three witnesses, taken by the defendant, are set out at length in the bill of exceptions, and constitute a part thereof. But no further reference is made to the deposititions of Palmer, than before stated; nor are they referred to in any way and made a part of the record. There is no statement of the facts. There are certain depositions of [343] Palmer, taken by the plaintiffs, copied in the record sent up, but no authority is shown for making them a part of the record, and they cannot be regarded as properly belonging to the record, there being nothing, as before stated, to show that they were the same offered and rejected by the Court. But there is another objection to our receiving the deposition of Palmer. It is not shown by the record, or bill of exceptions, on what ground they were ruled out; and if we were to receive the copy of them in the record, as the same that was rejected, there is no evidence that they were taken and returned in conformity to the requisitions of law. The fact of the other depositions, offered and rejected, being embodied and made a part of the plaintiff’s bill of exceptions, and the deposition of Palmer not so included, would raise the presumption that the latter had been rejected on the ground of its not being taken and returned in conformity with the statute. We therefore believe that but one question is raised by the record, for our consideration : the refusal of the Court to allow the plaintiffs to use in evidence the depositions taken by the defendants, on the ground that they had not been crossed by the plaintiffs. This is not now an open question. This Court decided in the case of Norvell v. Oury, (13 Tex. R. 31,) under our statute, (Hart. Dig. Art. 731,) “ that where one party “ applies for a commission to take the deposition of a witness, “ by interrogatories, and the opposite party fails to file cross “ interrogatories, the party at whose instance the commis“sion was issued, may decline, on the trial, to read the depo- “ sition, and the opposite party will have no right to read it.” On that adjudged case, we affirm the judgment in this. Judgment affirmed.