Opinion
No. 38544.
November 24, 1952.
1. Depositions — nonresident witness and interested parties — statute respecting.
The statute which provides that the deposition of a party or other interested witness shall not be admitted in evidence, if within the time prescribed any party to the cause shall make and file an affidavit that in his opinion the oral examination of such person in open court is essential to the attainment of justice, has no application to nonresident litigant witnesses or to nonresident witnesses interested in the litigation. Sec. 1711, Code 1942.
Headnote as approved by Roberds, P.J.
APPEAL from the circuit court of Hinds County; SEBE DALE, Judge by interchange.
Watkins, Edwards Ludlam, for appellant.
The defendant complied with all the requirements of Sec. 1711, Code 1942, and the only question presented is the effect on said depositions of a proper compliance with Sec. 1711. The writer of this brief has only found two cases bearing on this statute, one of which is Ogden v. Guice and Holden, 56 Miss. 330, in which case the Court said as follows: "The deposition of the interested witness, Guice, should have been suppressed. Affidavit having been made by the defendant, under Sect. 1076 of the Code of 1871 that justice required his oral examination in open court and complainants having produced the witness in open court and then declined to examine him, it was incompetent for them thereafter to use the deposition previously taken."
The case of Whitney National Bank v. Sterling, 177 Miss. 325, 177 So. 692, gives us a little clearer indication as to how Sec. 1711 fits into our trial procedure. In that case, the Court said: "Appellant refers to Secs. 1527, 1549, and 1550, Code of 1930, as authority for forcing the husband and wife to testify in this case. Section 1527 makes competent as witnesses all persons whether interested, or parties to the suit, or not. Section 1549 provides that either party to a suit shall have the right to force his adversary to testify. Section 1550 provides for the examination of interested witnesses in open court. These statutes are to be construed together so as to make each occupy its place without encroaching upon the others."
It is thus apparent that, construing all the deposition statutes together, the only method in which a defendant may require a nonresident adversary to testify personally is through Sec. 1711, whereas, a defendant may obtain the testimony of a resident adversary through the power of subpoena. It is thus respectfully submitted that Sec. 1711 merely equalizes the lack of power of subpoena against nonresident adversaries. The most forceful reasoning for the benefits conferred on a party litigant by Sec. 1711 can be found in the case of Brewer v. Beckwith, 35 Miss. 467, in which case the Court, speaking of the rights to take depositions, said as follows: "This mode of taking testimony is extraordinary, and in derogation of the right of a party to have a witness against him produced, and submitted to the view of the jury, in order that they may observe his look and manner, his willingness to testify, his feeling for either party, and the degree of his intelligence. These are important aids in enabling a jury to give to the testimony of a witness its due weight and credit; and the cases are not infrequent, where the most positive statements of a witness, taken in writing, and read to a jury in his absence, would be received with entire credit; but if made before the jury in person, where his manner, and feeling, and intelligence could be observed, would receive no credit whatever. The right of a party, therefore, to have a witness subjected to the personal view of the jury, is a valuable right, of which he should not be deprived, and of which it is not to be supposed the legislature intended to deprive him, except by necessity. And that necessity ceases whenever the witness is within the power of the court, and may be produced upon the trial.
The ruling of the court was in accordance with this view, and we consider it a sound and just rule of practice.
It is respectfully submitted that under the plain terms of Sec. 1711, Code 1942 the depositions of Samuel S. Salitan, David Little and John Blume were inadmissible as evidence in this cause.
Henley, Jones Woodliff, for appellees.
I. Sec. 1711 must be construed with all other sections on depositions and does not require nonresidents to attend court. Secs. 1311, 1687, 1688, 1699, 1703, 1708, 1710, 1711, 1712, Code 1942; Dillard Coffin Co. v. Woollard, 124 Miss. 677, 87 So. 148; Whiteney National Bank v. Stirling, et al., 177 Miss. 325, 170 So. 692; Mississippi Valley Trust Co. v. Brewer, et al., 157 Miss. 890, 128 So. 83.
A. Sec. 1711 does not apply to nonresidents. Secs. 1708, 1711, 1712, 3853, Code 1942; Griffith, Mississippi Chancery Practice, (1st Ed.), Secs. 547, 548, (2nd Ed.), Footnote 47, Sec. 551, p. 569; Fidelity Casualty Co. v. Johnson, 72 Miss. 333, 17 So. 2; 154 A.L.R., pp. 856, 857.
B. Sec. 1711 was originally enacted as a part of the ancient chancery court statutes, and it has no application to circuit court actions. Secs. 788, 791, 795, 1076, 1077, 1078, 1079, 1080, 1084, 1085, 1086, Revised Code of 1871; Sec. 1672, Hemingway's Annotated Mississippi Code of 1927; Griffith's Mississippi Chancery Practice, (1st Ed.), Sec. 547.
The only question for decision herein is whether or not Section 1711, Miss. Code 1942, is applicable to nonresident litigant witnesses and witnesses who are interested in such litigation. That section reads: "When the deposition of a party or other interested witness has been taken in a cause, and a party to such cause shall make and file an affidavit, ten days before the time of trial, if such deposition shall be then on file, that, in his opinion, the oral examination in open court of such person is necessary to the attainment of justice, the deposition shall not be admitted in evidence for the party taking it if such person be alive at the time of trial and not unable to attend court on account of disability from permanent sickness, physical injury, or from weakness and disability incident to old age; but such person may be examined in open court. Where such deposition shall be filed in the clerk's office within ten days of the time of hearing the case, the affidavit required may be made at any time before the trial. Any party or witness thus required to attend shall be entitled to compensation as any other witness."
The question arises in this manner: Salitan and Little, doing business under the style of Credit Industrial Company, brought this action against appellant, to recover a sum of money evidenced by six acceptances issued by appellant, then doing business under the name of Magnolia Chemical Company, to Ohmlac Paint and Refining Company, and which instruments, according to plaintiffs, had been purchased by, and assigned and endorsed to them, in due course. Salitan and Little and John H. Blume, an official of Ohmlac Paint and Refining Company, were all resident citizens of New York City, New York, which was also the domicile of both business concerns.
The depositions of Salitan, Little and Blume were taken and filed in this action. Appellant made the affidavit for which provision is made in the foregoing section, and then moved that the said three depositions be stricken. The trial judge denied the motion, admitted the depositions in evidence and, defendant declining, or failing, to put on any testimony to sustain his contentions, the trial court granted plaintiffs' peremptory instruction and verdict and judgment were rendered for them in the sum of $3,664.13, from which action this appeal is taken.
It is admitted by able counsel for appellant that the depositions entitled plaintiffs to a verdict and judgment, but he says that after the affidavit was made the depositions were incompetent. Deponents did not appear at the trial.
Does Section 1711 apply to nonresident litigant witnesses and other nonresident witnesses interested in the litigation? No case in point has been cited by either side and our investigation has disclosed none. It may be significant that the question here presented has not been raised in this Court, so far as the records disclose, since the first enactment of the foregoing statute in 1871.
We think the question is solvable by the wording of the statute and the practical effect of the contention.
As to the wording, it will be noted the statute provides that "Any party or witness thus required to attend shall be entitled to compensation as any other witness." Now, a witness is not entitled to compensation unless he be subpoenaed. He cannot be subpoenaed if he be without the state. If he is subpoenaed he is entitled to one dollar and fifty cents for each day he attends chancery or circuit court, and, in addition, five cents for each mile going to and returning from the courthouse to his home "by the nearest route," and also such tolls and ferriages as he may actually be obliged to pay, which can be charged only once for each term of court, "and a charge shall not be made for mileage except that traveled in this state." Section 3953, Code 1942. The phrase in Section 1711 "Any party or witness thus required to attend shall be entitled to compensation as any other witness" would seem to refer to compensation of subpoenaed witnesses, and these, as stated, can only be subpoenaed within this state.
As to the practical effect of the contention, it would, if sustained, prohibit nonresident litigants, to a great extent, from seeking relief in the courts of this state, depending upon the value or importance of the subject of the litigation and the distance of the residence of the nonresident litigant from the place of trial. In many cases the expense of attending trial would be greater than the amount involved in the litigation. For instance, in this case the three deponents resided in New York City. The expenses of the three in traveling from New York to Hinds County, Mississippi, and return, and while attending court, would have amounted to a considerable sum — much more, very likely, than any profit to the plaintiffs in this transaction. Many more extreme cases have, no doubt, occurred in the past and will occur in the future, both as to the distance the litigant must travel and the smallness of the amount involved. In an effort to interpret the statute, we should try to understand the conditions existing when it was enacted in 1871. And we know from history that methods of travel were then slow, burdensome and arduous. We know, too, from common knowledge, that cases seemingly ready for trial are often suddenly and unexpectedly continued to a subsequent term. This might happen a number of times. That would result in a litigant residing in California, for instance, making numerous trips to Mississippi to prosecute his suit, with all the incidental expense of such trips and the stay here for his trial. In other words, the contention would often have the practical effect of preventing nonresidents from resorting to the courts of this state to enforce their just demands. We cannot attribute such a purpose to the Legislature in enacting the statute.
Again, it will be noted the statute not only includes litigants but also "interested" witnesses. Just who would be an "interested" witness under this statute? Apparently he is not a litigant. The statute expressly includes that class. Such witness would apparently not be a party to the litigation. We can conceive of many circumstances under which one might be termed an "interested" witness, as, for instance, a relative, or even a partisan, of a litigant. Take the case at bar, for instance: Blume was a deponent. He was an officer of the original payee, the assignor of the acceptances. His Company was not a party to the litigation but there may have been a contingent liability on the part of his Company to the plaintiffs herein. Defendant denied the plaintiffs were holders for value in due course and, by one plea, asserted the goods had been returned to and accepted by the Ohmlac Company. Was Blume an "interested" witness? The pertinency of this is that a witness might be "interested" in the cause of the plaintiff but not sufficiently interested to go to the trouble and give his time to attending courts in Mississippi. The litigant would have no method of forcing him to attend. If the deposition of such a witness is not admissible, then the litigant would be powerless to obtain his testimony. What we have said constitute illustrations — not an effort to define who is an "interested" witness under this section.
Appellant cites Ogden v. Guice, 56 Miss. 330, but here Guice, whose deposition was not admitted, was a resident of the county in which the case was being tried and was personally present at the trial. The case is not authority for the contention.
Appellant urges the right to have the benefit of the personal appearance of the witness before the court and jury. That is a valuable right, but, while it may be an advantage to an opposing litigant, it may also be a great disadvantage to him, depending upon the impression made by the witness upon the court and jury. But it is not a right guaranteed by law and there are many circumstances under which such appearance is not practical, as is demonstrated by the several statutes providing for the taking of depositions of witnesses under varying circumstances.
It will be noted that the right to confront the witness and the right of cross-examination are adequately preserved under our jurisprudence. Interrogatories may be propounded to nonresident parties to the suit, which, if not properly answered within a reasonable time, may result in decree pro confesso or judgment by default against such nonresident. Section 1712, Miss. Code 1942. Either party may subpoena his adversary, if found within this state, place him upon the stand as an adverse witness and cross-examine and contradict him, even though his deposition has been taken, (Section 1708, said Code) and where depositions are taken either of residents or nonresidents, the adverse party may be present and subject such witnesses to personal cross-examination. Sections 1703 and 1706, said Code.
It is pertinent to observe also that affiants would run no risk in making the affidavits. The statute does not require that any fact be stated therein. It only provides that affiant give it as his opinion that oral examination of the witness is necessary to the attainment of justice. The practice would grow up that in all cases, certainly in the great percentage of them, the affidavits would be made, which fact, to a large extent, would prevent nonresident litigants undertaking to enforce their rights in the courts of this State.
The trial court was correct in admitting the depositions as evidence and in granting the peremptory instruction.
Affirmed.
Hall, Lee, Holmes, and Arrington, JJ., concur.