35 Ala. 226 | Ala. | 1859
It is urged in support of the chancellor’s action, in refusing to direct that the defendant should submit her person to a medical examination, tó be conducted under the order of the court, that she (the defendant) was a non-resident — was not subject to the order' of the court — and that the order, if made, could have accomplished'nothing, unless the'defendant had" voluntarily submitted to it; in other words, that the court had no power to compel the defendant to comply with such order, she being beyond its jurisdiction. It is not our purpose, in this'opinion, to commit ourselves either for or against this proposition. Possibly, in ‘ cases like the present, where all imputation of collusion is excluded, the court, as a means of coercing obedience to its orders, might suppress the defendant’s testimony, derived from an ex-parie examination. "We simply state this proposition, however, for the purpose of saying we do not decide it. — See Newell v. Newell, 2 Paige, 25.
In the present ease, interrogatories were propounded, at the instance of defendant, to Drs. Hays and Erierson, which were of a character to give notice that the defendant had been,the subject of a medical examination, and that in such examination some instrument or instruments had been used. The character of the disease under whicfy it was alleged she was laboring, would naturally indicate the instrument that was probably used. These interrogatories were served on the complainant’s solicitor, and were crossed by him. He also, under the rule in such cases, demanded notice of the time and place of the execution of the" commission, which was given to him. The testimony was taken ; both parties, as we infer from the caption, being present, or represented. All the testimony being returned to the court, it was published by consent. After this, the complainant moved the court for an order requiring the defendant to submit to a professional examination, which motion the court overruled. This decision of the court is assigned as error. Without assigning any other reason for our opinion, it is a sufficient answer to this assignment of error, that after publication has passed, it is a matter of discretion with the chancellor,