102 So. 2d 820 | Fla. Dist. Ct. App. | 1958
This cause has been before the Supreme Court of Florida upon several occasions. See Chaachou v. Chaachou, Fla.1954, 73 So.2d 830; Chaachou v. Chaachou, Fla. 1957, 92 So.2d 414. An appeal is now in that court upon the merits of the cause. A statement of the factual background is therefore unnecessary. One of the main points designated as error by the defendant, who is appellant in the Supreme Court and in this court, in the last mentioned appeal, was the refusal of the chancellor to allow one Wead A. .Summerson to testify at the trial. Defendant moved for leave to take the deposition of Wead A. Summerson pending the determination of the interlocutory appeal in the Supreme Court. Plaintiff opposed the motion and a hearing was had. The chancellor refused to allow defendant to take 'Summerson’s deposition pending the appeal and entered an order denying the motion. It is from this last order denying defendant’s motion for leave to take the deposition that the interlocutory appeal to this court is now taken.
It should be noted that the appellee has not moved for a transfer of this interlocutory appeal to the Supreme Court and has filed a full and complete brief upon the procedural question involved.
Appellant’s motion was made pursuant to Rule 1.22(b), 1954 Rules of Civil Procedure.
Reversed and remanded.
. Rule 1.22(b) “Pending Appeal. If an appeal has been taken from a judgment of a circuit court or before the taking of an appeal if the time therefore has not expired, the circuit court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use
. Rule 1.22(a) “Before Action. (1) Petition. A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of this state, may file a verified petition in the circuit court in the county of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show: 1, that the petitioner expects to be a party to an action cognizable in a court of the State of Florida, but is presently unable to bring it or cause it to be brought, 2, the subject matter of the expected action and his interest therein, 3, the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it, 4, the names or a description of the persons he expects will be adverse parties and their addresses so far as known, and 5, the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the deposition of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.”