Ryan v. Beard's Heirs

STONE, J. — At a former term of the court, defendants submitted an affidavit for a continuance, in which they set forth what they expected to prove by Bush, an absent witness, who had been summoned, but did not attend. For the purpose of obtaining a trial, plaintiff’s counsel admitted that the witness, if present, would testify as therein set forth. — Buie of Practice in Circuit Courts, No. 16; Code, p. 160. Such admission is not an admission that the statements therein set forth are true, nor is it an agreed state of facts. The party making such admission is not even held to admit either the competency of the witness, or of the testimony. It is an admission he would so testify, and this the party admitting will not be allowed to controvert. He may, however, object to the competency of the witness, and to the legality of the evidence, or any part of it. So, he may disprove the facts the admitted testimony tends to prove. When such admitted affidavit is used on the trial, to. prevent the delay of which the admission is made, — or if a continuance is .otherwise had, — it can in no case be used in a subsequent trial, without the consent of opposing counsel. Its [310] whole power and efficacy expire with the term at which it is Siven — with the trial it is intended to accelerate.- — M. & W. Plank-Road Co. v. Webb, 27 Ala. 618; Peterson v. The State, 63 Ala. 113. This is not the case of proving what a deceased witness swore on a former trial. — 1 Greenl. Ev. §§ 163 et seg. The Circuit Court erred in allowing the affidavit to be read as evidence, against the objection of plaintiff. The chancery decree certainly vested in Samuel E. Ryan all the title, legal or equitable, which G. M. Moore had in the lands in controversy, at the time the deed was executed. Whether he had any title, or ever owned the lands in suit, was one of the controverted issues in the court below. Neither of the charges asked should have been given ; for each asked the court to charge- the jury, as matter of law, that the chancery decree vested the legal title to the lands in controversy in Samuel F. Ryan. Beard was not a party to the chancery suit, and any claim or title he may have had, was unaffected by that proceeding.— Walker v. Elledge, 65 Ala. 51. The facts presented by this record are different from those shown on the former trial. — Ryan v. Kilpatrick, 66 Ala. 332. As the case now appears, the most material subjects of inquiry are, whether the land in controversy is embraced in the deed of G. M. Moore to Bush and Finley, trustees, and whether the possession of the premises was taken and held under that deed, or was in Arthur Beard. Reversed and remanded.