Sioux Land Co. v. Ewing

Eschweiler, J. Although numerous objections were interposed to the filing of the deposition of Louis Ereniere, they are all substantially included in the following: Eirst, that no sufficient reason is shown for the taking of the deposition; second, that the showing made discloses an entire lack of any interest by plaintiff in the real estate; and third, that the witness was incompetent to testify to transactions between himself and the deceased person through whom appellants claim title. Erom the petition it affirmatively appears that the plaintiff claims to be the owner of and is in possession of the premises, and it negatively appears that no action is pending con■cerning the title to these lands and that there is nothing to interfere with the immediate commencement of such an action. The petition and evidence fail to disclose any immediate need of taking such deposition other than the fact that the witness .Ereniere is nearly eighty years of age. Under the situation disclosed the plaintiff was in a situation to commence an' action to quiet title, and having commenced such action could forthwith, under the statute and [44] either before or after issue joined, proceed to take the deposition of the same witness as herein involved, and it is therefore urged by appellants that plaintiff should have been relegated to the relief obtainable in such action rather than be allowed to continue in this special proceeding. It is further argued that while sec. 4126, Stats., governing the taking of depositions without the state, provides that a commission shall issue upon the court being satisfied that there is sufficient, cause for the taking thereof, there is no such requirement in the statute as to the taking of depositions within the state, and therefore the sufficient cause required under that statute must mean substantially that the same reasons must be shown to exist as were required under the old rules of practice in equitable proceedings to perpetuate testimony; the old practice being that no separate proceedings could be had to perpetuate testimony except upon a showing of some actual and substantial impediment to the then prosecution of an action in which such testimony would be material and could be taken. Evidently, however, the legislature intended its new rules embodied in these statutes to take the place of the old practice, and we can find in the language of the statutes themselves no grounds for holding that it was intended that such a provision of the old rule should survive in the new. Nor can we hold that the statutes governing special proceedings, such as secs. 4117 — 4134, or those providing for the taking of depositions after an action has been commenced, such as secs. 4102 or 4113, are any of them intended to be exclusive, so that the mere fact that this deposition could have been taken after an action was commenced does not exclude the right to take it before the beginning of an action. We are satisfied, therefore, that the court below was properly within its discretionary powers in holding that when, as here, it appears that the evidence may be material, that a long delay may be the cause of losing the testimony of such witness, and that there is no [45] want of good faith in the proceeding, then the sufficient cause-required by sec. 4126 has been shown. On the second point involved, it is contended that the judgment quieting title in appellants, shown on the hearing to have been entered as against plaintiffs grantors, including the witness Exeniere, is such an effectual quietus to any claim of title by plaintiff that it has no standing to apply for leave to take this deposition in this special proceeding. As against the claim of ownership and the allegation of possession of the plaintiff, this judgment certainly raised an issue, but one that the court certainly need not, even if it could, dispose of in this special proceeding, and the court below, therefore, did not err in refusing to dismiss the proceedings on that objection. On the third point it is evident that the objection raised as to the competency of the witness can be effectually raised at any time that the deposition shall be offered in evidence, and much may depend upon the then state of the record and proceedings in such action in determining how far such objection should be sustained. It appears on examination of the deposition herein that some at least of the testimony of the witness would manifestly not be subject to such objection, and the entire deposition cannot be now refused record because some of it may ultimately appear to be inadmissible under proper and timely objections. Among other objections urged besides those already disposed of, appellants claim that the commissioner had no authority to set another time for the taking of the deposition than that first set by him. But the power and authority*was expressly given to such commissioner by the court to fix the time and place of the taking of such deposition and it was not exhausted by the failure of the witness to appear, whatever the cause of such failure. It is also claimed that the appellants were put to an expense of over $175 in attending at the hearing first noticed, [46] Rut it does not appear that any application was made to have any allowance made for snch expenses in any way as a condition for the recording of the deposition and it cannot now affect the question of plaintiff’s right to have the deposition ^recorded. By the Gourt. — Order affirmed, and the record returned to 'the circuit court with directions to order the recording of, .■such deposition within thirty days after such return.