Neeves v. Gregory

LyoN, C. J. Plaintiff brought this action for relief in respect to a certain mortgage executed by him, the ownership of which is claimed by each defendant, Boos and Gregory, adversely to the other. The action is therefore, in one aspect of it, in the nature of interpleader, and as to each other the defendants are adverse parties. In the progress of the action two orders were made by the trial court,— one relating to the examination of Gregory at the instance of Boos, under sec. 4096, B. S.; and the other to a proceeding by Gregory to have his deposition as a witness in his own behalf taken on commission. Gregory is a nonresident of this state. In the first order the court sustained the right of Boos to examine Gregory under sec. 4096, on oral interrogatories, on a commission to be executed in another state, and Gregory appeals. In the other order the court denied the right of Boos to cross-examine Gregory on oral interrogatories, on the taking of his deposition ac a witness in his own behalf, out of the state, on commission and written interrogatories, and Boos appeals. 1. Sec. 4096, R. S., provides that the examination of a party thereunder at the instance of an adverse party “ may be taken without the state upon commission in the manner provided for taking other depositions.” It provides further that “ the party examining shall, in all cases, be allowed to examine upon oral interrogatories.” The manifest purpose of the statute is to give the examining- party every reasonable opportunity for a most thorough examination of his adversary, and this is accomplished the most effectually by an oral examination. We cannot doubt, therefore, that the clause of the statute last above quoted should apply to every examination under sec. 4096, whether before or after issue joined, or within or without the state. The respondent would construe the first clause of the section above quoted as though it read that the examination “ may be taken without the state upon commission in the manner [321] provided for taking other depositions upon commission.” ¥e construe the statute as though it read: “ In the manner provided for taking other depositions upon notice or commission.” This construction gives the right of examination upon oral interrogatories. R. S. secs. 4110, 4112. The practice adopted by Boos was. therefore correct, and the. order in that behalf should not 'be disturbed. Hence, on Gregory's appeal, the order is affirmed. 2. A party may take the deposition of his witness out of the state in a proper case, either on notice and oral interrogatories, or on commission and written interrogatories, at his option.' If he elects to take the same in the latter mode, we know of no statute or authorized rule of practice which will permit the adverse party to cross-examine the witness orally. And we think it quite immaterial that the witness whose deposition is to be taken is the party himself. The same procedure is prescribed in both cases. The circuit court so held. Hence, on the appeal of Boos, the order is affirmed. By the Court.— Ordered accordingly.