Siefert v. Siefert

Grant, J. {after stating fhe facts). She was only temporarily ill. Her deposition might have been taken. Her testimony was important. I find no authority which holds that temporary illness is sufficient to justify the reading of the testimony taken upon a former trial. "Where the illness is only temporary, certainly the opposite party should be allowed the choice to consent to a continuance or to the introduction of the former testimony. Counsel rely upon Howard v. Patrick, 38 Mich. 795. It must be conceded that the language there used is broad enough to include any case of illness. The character of the illness in that case does not appear in the opinion. The testimony was excluded. Upon examining the record, we find the offer was to prove that the witness, about five months before, had been struck with paralysis; had been confined to his house, and most of the time to his bed; had been ever since, and then was, insane, and unable to come to court, or to give his testimony or his deposition in the case. The language of the court must be construed in the light of the facts. The only safe rule is that the illness must be of a permanent character. We think this is the rule sustained by the authorities. 2 Jones, Ev. § 345; Rex v. Hogg, 6 Car. & P. 176. Judgment reversed, and new trial ordered. The other Justices concurred.