Lessly v. Ogden

Oalhoon. J., delivered tbe opinion of the court. We do not disturb tho conclusion of the chancellor on the facts. On the law, the ease is that appellant (defendant below) filed with his answer to the bill a written notice, signed by the counsel, as follows: “The complainant in the case will take notice that the defendant herein desires and intends to have witnesses examined in open court upon the hearing of this cause.” 'Relying on this, appellee (complainant below), by her solicitor, appeared with her witnesses for oral examination. But on offering to so examine them, defendant, silent until then, objected; relying on Dickerson v. Askew, 82 Miss., 436; s. c., 34 South., 157. The cases are not parallel. There it does not appear that anyone was misled. There the complainant in a cross bill gave the notice that leave would be asked for oral examination, and the defendant to the cross bill might well rely upon legal objections. There the defendant had done nothing to mislead the cross complainant. If mislead at all, she mislead herself; and no evidence appears in the record in that case, while in this all 'the evidence on both sides was produced and taken.' Here' the defendant gave notice of his “desire and intention” to have the witnesses examined orally, and the complainant acted on this, refrained from takeing depositions, and produced her witnesses, when, at that late period, defendant asked leave to withdraw his written notice and object to testimony ora terms, thus necessitating a continuance. We think that, at any period of chancery practice, before § 1764 of the code of 1892 was enacted, a chancellor willing to hear the evidence would have proceeded, and could . have properly proceeded. 1 The statute cannot be properly construed to justify the laying snares for the unwary, and this might be the result in many cases, notwithstanding that there was no such purpose in the case before us. The action of the parties here was equivalent to a written agreement, and the court properly refused to permit defendant to withdraw his notice and force a continuance. The statute is not to be used to set traps. Complainant relied [446] 'on the assurance of the notice, brought her witnesses, accepted the proposition involved in the notice in open court, and was there met with a proposition of withdrawal of the notice in order to compel a continuance, notwithstanding defendant was ready with his witnesses, and did actually proceed with his oral evidence.- His point cannot be considered-on -general principles of fair dealing. Affirmed.