Appeal, 85 | Pa. Super. Ct. | Apr 29, 1924
Argued April 29, 1924.
The Act of Assembly of 1887, P.L. 158, Section 9, provides: "Whenever any person has been examined as a *310
witness in any civil proceeding before any tribunal of this Commonwealth or conducted by virtue of its order or direction, if such witness afterwards die, or be out of the jurisdiction so that he cannot be effectively served with a subpœna, or if he cannot be found, or if he become incompetent to testify for any legally sufficient reason, and if the party, against whom notes of the testimony of such witness are offered, had actual or constructive notice of the examination and an opportunity to be present and examine or cross-examine, properly proven notes of the examination of such witness shall be competent evidence in any civil issue which may exist at the time of his examination, or which may be afterwards formed between the same parties and involving the same subject matter as that upon which such witness was so examined; but for the purpose of contradicting a witness, the testimony given by him in another. a former proceeding, may be orally proved." At the first trial the plaintiff and his wife testified. The defendant was not present. Defendant died. The court granted a new trial. At the second trial the plaintiff offered the transcript of the testimony of himself and his wife, given at the first trial and duly certified. The court refused to receive it, and there being no other testimony offered in support of plaintiff's claim, a nonsuit was entered. The court in an opinion subsequently filed gave as the reason for declining to receive the testimony "that the defendant did not have actual or constructive notice of the examination nor an opportunity to examine or cross-examine the plaintiffs at the first trial. The trial was an ex parte proceeding, and the defendant therein at the hearing of the argument on the motion for new trial established to the satisfaction of the court that the defendant had no knowledge of the trial through a misunderstanding of facts on the part of his attorney and was, therefore, not present or represented by counsel at the trial." The correctness of this ruling is the only question in the case. The act above quoted provides in order to have its provisions apply the *311
party against whom notes of testimony are offered shall have "had actual or constructive notice of the examination and an opportunity to be present and examine or cross-examine." If actual or constructive notice appears, the opportunity to be present is presumed to have been afforded. It would be useless to bind the party to constructive notice if the effect would not be the same as if he had actual notice. The question, therefore, narrows itself down to whether the defendant had constructive notice. When the case was on the trial list plaintiff's attorney told defendant's attorney "our case with Niewohner is on the trial list and should be reached next week." The defendant's attorney thinking the reference was to another case in which Mrs. Arnold, wife of the plaintiff, was interested replied, "I do not know whether we will contest that case. I may have somebody else take charge of the matter for me." Notice to the attorney was notice to the client: 6 C.J. 639; Hood v. Fahnestock, 8 Watts 489" court="Pa." date_filed="1839-09-15" href="https://app.midpage.ai/document/hood-v-fahnestock-6312087?utm_source=webapp" opinion_id="6312087">8 Watts 489; Patterson's Est.,
The judgment is reversed with a venire.