67 P. 547 | Kan. | 1902
The opinion of the court was delivered by
This action was brought by M. H. Osborn against the Atchison, Topeka & Santa Fe Railroad Company to recover damages for the destruction of wheat by fire alleged to have been negligently started by the railroad company. The first trial resulted in a judgment in favor of Osborn, which upon review was set aside, and the case was remanded for another trial. (Railroad Co. v. Osborn, 58 Kan. 768, 51 Pac. 286.) At the second trial, the testimony of three persons who had testified on the first was offered by the railroad company and was rejected ; and this ruling is the principal error assigned for reversal by the company, which was again the losing party.
It was shown that the witnesses were beyond the jurisdiction of the court and the reach of its process, and that one of them resided in another state. It was agreed that the persons referred to were called as wit
The supreme court of Michigan holds that a witness who is beyond the jurisdiction of the court is, to all intents and purposes, so far as the parties to the litigation are concerned, legally dead. The process of the court can no more reach him, and the parties can no more avail themselves of his personal px'esence than if he were, in fact, dead. (Howard v. Patrick, 38 Mich. 795.) While there is some diversity of judicial opinion as to the admissibility of testimony given by a witness on a former trial, the great weight of authority, we think, sustains the Greenleaf rule. (Minneapolis Mill Co. v. Minneapolis & St. Louis Ry. Co., 51 Minn. 304, 53 N. W. 639 ; People v. Devine, 46 Cal. 46 ; City of Omaha v. Jensen, 35 Neb. 68, 52 N. W. 833 ; Young v. Sage, 42 Neb. 37, 60 N. W. 313 ; Perrin v. Wells, 155 Pa. St. 299, 26 Atl. 543 ; Magill v. Kauffman, 4 Serg. & Raw. 317, 8 Am. Dec. 715 ; Reynolds v. Powers, 96 Ky. 481, 29 S. W. 299 ; Shackleford v. State of Arkansas, 33 Ark. 539; Sneed v. State, 47 Ark. 180, 1 S. W. 68; Mattox v. U. S., 15 Sup. Ct. 337, 39. L. Ed. 409 ; Brown v. Leuhrs, 79 Ill. 575 ; Sullivan v. The State, 6 Tex. App. 319, 32 Am. Rep. 580; Dean v. The State, 89 Ala. 47, 8 South. 38 ; Reese v. Morgan Silver Mining Co., 17 Utah, 489, 54 Pac. 759; Emerson v. Burnett, 11 Colo. App. 86, 52 Pac. 752.)
The provision made by statute for- the taking of depositions does not militate against this rule. Testimony taken down word for word at a former trial, and preserved as the law provides, is evidence of at least as high grade as a deposition. The testimony is taken in open court, in the presence of parties and
The value of testimony taken and preserved under the modern system is well illustrated in Wright v. Wright, 58 Kan. 525, 50 Pac. 444, where it was held that “an official court stenographer who has correctly taken the testimony of a witness may read his notes of such testimony as evidence upon a subsequent trial, although he has no independent recollection of such testimony and can relate the same only by reading his notes thereof.” See, also, Emerson v. Burnett, supra. The fact that, since the first trial, new facts may have come to light which would affect the examination of the witness or the value of his testimony, is no objection to the admission of his testimony given at a former trial, which was properly taken and preserved. Such an exigency might arise if the testimony were taken by deposition ; and the fact that additional information was received, or that additional testimony by the witness was a necessity, would not render the deposition first taken inadmissible. The
Several other objections are made to the rulings of the trial court, but we find no substantial error in any of them. For the error, however, of excluding testimony taken on the former trial, the judgment must be reversed and the cause remanded for a new trial.