33 Wis. 147 | Wis. | 1873
I. The motion on behalf of the plaintiff to suppress the depositions taken in Iowa at the instance of the defendant, was founded upon several alleged irregularities in the taking of the same. But one of these is insisted upon here. The commissioner before whom the witnesses were examined, states in his certificate annexed to the depositions, as follows : “ Previous to-the commencement of said examination, the said witnesses were duly sworn by me as such commissioner, to testify the truth, the whole truth, and nothing but the truth, in ansioer to the interrogatories to be propounded by me in an action in the circuit court,” etc., describing this action. The form of the oath administered to the witnesses, is the form which the printed instructions annexed to the commission directed the commissioner to use. It is urged by counsel for the plaintiff that the deponents should have been sworn to testify the truth, the whole truth, and nothing but the truth, relating to this cause.
If there is any statute which prescribes the form of oath to be administered to a witness whose deposition is taken out of
In this state we have no statute or rule of court which prescribes the form of an oath to be administered to a witness whose deposition is taken out of the state, except that circuit court rule 61 requires the commissioner to certify in his return, “ that the witnesses were duly sworn or affirmed before giving their evidence.” Sec. 14 of ch. 137, R. S., which enacts that “ the deponent shall be sworn to testify the truth, the whole truth, and nothing but the truth, relating to the cause for which the deposition is taken,” relates only to depositions taken within this state. As the witness is usually examined upon oral interrogatories when his deposition is taken within the state, and as his examination may relate to all the facts in the case, the form of oath prescribed by the statute seems best adapted to cover and- include within its obligations all matters to which the witness may testify.
But when the matters to which the witness will be permitted to testify, are limited by written interrogatories, as in this case, there seems to be no good reason for making the oath any broader than his testimony. When the witness is sworn to testify the truth, the whole truth, and nothing but the truth, in answer to the interrogatories to be propounded to him, all that he can be permitted to testify, is necessarily testified to under the sanctions and obligations of his oath. He can only answer the interrogatories, and he has sworn to answer them truly.
It seems to us that in the absence of any statutory form of
II. On the main question of fact in the case, that is, whether the name of the defendant was inserted as grantee in the deed from Rowley and wife before or after such deed was executed, we have considered the testimony with care. An elaborate discussion of the question here would serve no useful purpose, and hence but little more will be said upon it than is necessary to announce the conclusion to which our minds have been impelled.
The grantors who executed the deed in question, the defendant, whose name now is in it as grantee, both attesting witnesses (one of them being the officer before whom it was acknowledged), and one other witness, all of whom were present when the deed was executed, testify positively that the name of the defendant was in it as grantee when it was executed. Except the defendant, it does not appear that either of these witnesses has the slightest interest in the event of this litigation, and only one of them is a relative of the defendant. There is no reason to believe, or even to suspect, that they are not all' reputable witnesses, whose testimony is entitled to credit. Some of them, especially Mr. Rowley and Mrs. Allen, detail what occurred when the deed was executed with such particularity, that there is but little room to doubt the accuracy of their statements.
Before we can reverse this judgment, based, as it is, upon a finding of fact, we must be satisfied that there is at least a preponderance of testimony against such finding. Murphy v. Dunning, 30 Wis., 296. It would be very difficult, indeed, to produce an array of testimony which would preponderate over that upon which the finding of the circuit judge is predicated. Who ever heard of a case where a court has corrected a deed for an alleged mistake or alteration, when the testimony of the
It is cheerfully conceded that the children of the parties who testified for the plaintiff, are entirely reputable, and that they testified honestly. Yet their testimony fails, in our opinion, to create a preponderance in favor of the plaintiff.
There are some collateral facts proved by each party, tending in some degree to sustain her or his theory of the case. But these are, in our opinion, very nearly in equipoise, making as much in favor of one party as of the other.
We find ourselves entirely unable to say, from the whole testimony, that there is a preponderance thereof tending to show that the deed was changed after it was executed. Hence we cannot disturb the finding and judgment of the circuit court.
By the Court. — Judgment affirmed.