Cole v. Choteau

Scates, C. J. The question raised upon the affidavit for a continuance is one of diligence. The general rule requires a party to use, and show due diligence in his preparation for trial. But each case depends upon the particular circumstances shown. If they bring the party within the rule, it would be error, under the provisions of the statute, to refuse a continuance. Here the plaintiff had cross-examined the witness on the very point—to the very fact set up in defense—and upon the alleged reason, that witness knew the contract, being present, and hearing it made. He, therefore, had reason to believe witness knew the facts. Under these circumstances, he should have made inquiries of witness, to refresh his recollection at an earlier period, and not leave this preparation to the casualty of an accidental meeting with witness, as he has done. It appears from Cole’s testimony that the contract was made with Charles P. Chotean. Having failed to prove the contract, as plaintiff alleged it to be, by the witnesses examined, no reason is shown why the testimony of C. P. Chotean was not taken, and the contract proved by him. It is not alleged that he had forgotten its terms, or that he was incompetent, unreliable or unwilling to depose to it as it was. While a party may not be required to summon all the witnesses cognizant of a fact, yet when he ascertains that it is unknown to, or forgotten by those to whom he applies to give testimony, the rule of diligence will require that he apply to, and summon others whom he may believe to possess the same knowledge. Ho reason is shown for pretermitting any diligence to take Choteau’s testimony, and relying upon refreshing Cole’s memory, at a period too late to retake his testimony. Did plaintiff forget that he contracted with defendants through Chotean ? The circumstances fall short of legal diligence. The objections urged to the depositions, are not sufficient to authorize the entire rejection of the depositions. After correcting the depositions by striking out the irrelevant or incompetent portions, it does not appear that witnesses knew or could have made any further or fuller answer to the fourth interrogatory. For anything appearing they only knew the fact as one of common understanding, and not as an agreement between the parties. I am not prepared to hold that a party may have the depositions of the opposite party suppressed for want of full answers of witnesses to his adversary’s interrogations. The objection should rather come from the party injured. The other objections are of a technical character, and fall within the principles and are disposed of hy the cases of Hawks v. Lands, 3 Gilm. It. 232; Hays v. Borders, 1 ibid. 64; County of Greene v. Bledsoe, 12 Ill. R. 272. The court have not adopted so technical a construction as seems to have been intended in Maine. Erskine v. Boyd, 35 Maine R. 511. The statute here does not authorize the party to appoint the commissioner, consequently he could not give his name in the notice to sue out the dedimus. It is not required by the statute, for the clerk might appoint some other, than the one so nominated in a notice. The indorsement of the names of parties litigant is directory, when injury may arise from an omission, the court would, doubtless, correct the error in the particular case, by suppressing the deposition, bio injury or surprise is shown here. Judgment is affirmed. Judgment affi/imied.