Nixon v. Palmer

By the Court, Edwards, J. We do not think that the testimony in this case warrants the conclusion that the witness, whose deposition was taken de bene esse, was, at the time of the trial, either a resident of this state, or that he was within this state, according to the spirit and meaning of the statute. It was clearly proved at the trial, that the witness was a resident of Wisconsin at the time his deposition was taken, and continued to be so for some time afterwards. This testimony cast the burthen of proof upon the defendant; for residence in another state having been once established, the presumption, unless rebutted, would be that it continued. Does the proof then show a change of residence ? The only testimony relied upon for that purpose, is that of the defendant in the suit. In the first place, it is questionable whether he was a competent witness. The general rule is, that a party who offers á deposition taken de bene esse, can himself prove the absence of the witness; and there is every reason why that should be the case, [179] for he merely enables himself to read testimony which, for the sake of convenience, has been taken before, instead of at the trial. And, in legal supposition, no injury can be done to the party against whom it is introduced. But is not the case different where the party against whom the deposition is taken, is offered for the purpose of excluding it altogether 1 There can be no doubt that such a party has the strongest interest in excluding the testimony of the witness; for by so doing he might, and in most instances would be able, upon his own testimony, to succeed in the suit. In this case, however, the justice at the circuit allowed the defendant to be examined; but, although the question of his admissibility is not before us, still, the fact of his interest ought to be taken into consideration in weighing his testimony. It will be seen by reference to the case that the defendant in his direct examination said, that at the time of the trial, the witness Sandford was a resident of Mendon, in Monroe county, in this state ; that he had seen him there on the Monday before the trial, and that he had a family living there. But it will also be seen, upon reference to his cross-examination, that he does not state, of his own knowledge, a single fact which supports his direct examination, except that he casually saw the witness at Mendon on the Monday previous to the trial. And the vagueness of his testimony clearly shows that he was not warranted in the conclusions which he gives in his direct examination. The question, then, which was presented to the court was, whether the positive proof of the residence of the witness in Wisconsin, was overcome by the testimony of the defendant himself; or, in other words, whether the uncorroborated testimony of an interested witness, which,, at best, is óf an indefinite and unsatisfactory character, that he had seen a resident of Wisconsin in a remote part of this state shortly before the trial, was of itself sufficient to authorize the exclusion of his deposition taken de betie esse. (See Ward v. Wells, 1 Taunt. 461.) This was, chiefly, a question as to the weight to be given to testimony; and the justice at the circuit, who had the witnesses before him, and who knew the bias of interest under which the [180] defendant testified, came to the conclusion that the witness Sandford could not be considered a resident of this state, and according to the spirit and meaning of the statute, was not, at the time of the trial, within this state, in such a manner as to exclude the reading of his deposition. It seems to us that we should not be warranted in coming to a different conclusion. But it was also contended that the defendant had not sufficient notice of the examination. The statute provides that the party against whom a deposition is to be read, may prevent the reading thereof, by satisfactory proof that sufficient notice was not given him to enable him to attend the examination of the witness. (2 R. S. 893, § 8.) The defendant offered no evidence to show that he had not received sufficient notice of the examination, but relied upon other facts and circumstances which had been proved, or appeared, upon the trial. The justice at the circuit did not think that those facts and circumstances amounted to satisfactory proof that sufficient notice had not been given, and we think that he was justified in coming to this conclusion. The motion for a new trial must be denied, with costs.