| Mo. Ct. App. | Apr 15, 1902
Respondent is the widow of Albert G. Bates, deceased, and appellant the administrator of his estate,
There is another suit pending between Della Bates, a daughter of the respondent and the deceased and the defendant as administrator, wherein said daughter seeks to recover a note for one thousand dollars on a man named Chip, claimed to have been assigned to her by her father at the same time the assignment of the note in controversy in this case was made to her mother.
On .the trial of the present action, the respondent’s counsel offered in evidence the deposition of J. M. Hoover, taken in the case of Della Bates v. D. D. Bates. Hoover, who is dead now, was an attorney and drew the will of Albert G. Bates, and at the time of the preparation of the will had a conversation with the testator which was repeated in said deposition, in substance as follows:
“Q. State whether at that time you had a conversation with him in regard to disposing of his property not named in the will, and if so, what did A. G. Bates say to you? A. I did. After I had read over to him what he had willed in the will, I asked him if that was all the property he had; he said, ‘No, I want to keep some back for the old man.’ I told him he had all the property and the will under his control and had a right to change it or do as he pleased with it, ánd I stated to him, ‘What you do not dispose of in your will, will be equally divided among all the heirs.’ He then said, T have a right to do what I please with the property I have not disposed of in my will;’ and in that conversation he asked if I had put the Culp note in the will to Della; I told him no, but that I could, and he said, ‘No, it is not worth while, I will just turn it over to her.’ I told him the fix him and me were in, he had better do it pretty soon, and he. said he would right away.”
Though reluctant to reverse the judgment in respondent’s favor, we are compelled to hold that the circuit court erred in admitting the deposition. In fact, we are unable to surmise on what ground it was admitted, so palpably incompetent was it as evidence in this cause. Not only was it taken in another suit between other parties, but not a word in it refers to the issues in this case, or bears on them except remotely, as tending to show an intention of Albert G. Bates to give a certain note to his daughter, which intention is said to have, been carried out when he gave the one in suit to his wife.
A deposition is sometimes admissible in evidence in a suit other than the one it was taken in, when the suit in which it is offered is between the same parties as the one in which it was taken, or parties claiming in privity with them, if the testimony is relevant to the issues being tried and the party against whom it is offered had an opportunity to cross-examine the witness as to the matter in reference to which the deposition is offered and was legally called on to do so. 1 Greenleaf on Evidence (16 Ed.), sec. 163a; Parsons v. Parsons, 45 Mo. 265" court="Mo." date_filed="1870-01-15" href="https://app.midpage.ai/document/parsons-v-parsons-8002758?utm_source=webapp" opinion_id="8002758">45 Mo. 265. Thé vital point is the opportunity to cross-examine, which the law regards as the most effective means of eliciting the whole truth and avoiding the prejudicial effect of a false coloring which a partial witness might otherwise impart to his testimony.
While D. D. Bates was defendant in the Della Bates case as well as in this one, he had no reason to cross-examine Hoover as to the note claimed by Mrs. Bates and may have refrained from a .particular cross-examination for valid rea
The judgment is, therefore reversed and the cause remanded.