Rhees v. Fairchild

Per Curiam, We are not prepared to say that the learned trial judge erred in not rejecting the depositions mentioned in the first and second specifications. Instructions, issued for the guidance of commissioners in taking testimony, are directory rather than mandatory, and while it is of course desirable that they should be substantially if not' literally complied with, it would be a harsh rule of practice to exclude depositions, because, in some slight particulars, not affecting the merits of the case, the commissioner or officer, taking the same, may have neglected to [559] comply with the formal instructions. Some latitude of discretion must be accorded to trial judges in such cases. As was said by Mr. Justice Thompson in Kellum v. Smith, 89 Pa. 241, 243 : “ It is a mistake to suppose that rules for commissions are to be rigidly construed against depositions, because testimony so taken is not supposed to be so satisfactory as the personal presence of the witness. While this may be conceded, it must be remembered that in a country composed of so many sovereign states, .... it is the only way of certainly obtaining testimony out of the state, although the witness may be within a few miles of the court, as is often the case. A bona fide substantial compliance, therefore, with the rules of court, requiring notice to be given, is not to be defeated by a mere technicality which could not eventuate in any possible injury to a party who desires nothing but fair play.” In this case there was no abuse of that discretion with which trial judges are necessarily invested in such cases. Judgment affirmed.