122 Ind. 585 | Ind. | 1890
This was an action to recover money which the appellee alleged was in the hands of the appellant to and for the use of the appellee.
The appellant answered by general denial and a plea of payment, to which second answer the appellee replied with a general denial.
The cause was tried by a jury, and a verdict returned for the appellee, and, over a motion for a new trial, the court rendered judgment in accordance with the verdict.
The only one of the errors assigned to which our attention is called by the briefs of counsel, is the alleged error of the court in overruling thepnotion for a new trial.
It appears in the record that before the trial the appellee examined the appellant under the provisions of section 510, R. S. 1881, and the examination as taken was filed as a deposition in the cause, as provided in section 511, R. S. 1881.
Upon the trial, and to support his case in the first instance,, the appellee read the said examination in evidence, and then placed himself on the witness-stand as a witness, and testified to a state of facts directly in conflict with some of the answers made by the appellant in his said examination, and in addition, in specific and direct language, negatived certain of the said answers made by the appellant.
The contention on the part of the appellant is, that by the introduction of the ante-trial examination the appellee made the appellant his own witness, and was therefore bound by the said examination so far that he could not in direct and specific language negative any part of the said examination; and that in admitting such testimony over the appellant’s objection, the court committed an error; that the appellee could not impeach his own witness, and that the evidence objected to was in its character impeaching testimony.
There are several grounds, we think, upon which the ruling of the court may stand.
In the first place the introduction of the ante-trial examination did not put the appellant in the position of a witness testifying in person in the presence of the court and jury.
In the introduction of the said examination the appellee was compelled to introduce it as an entirety ; he could not introduce the examination in chief and omit the cross-examination.
Had the appellee made a witness of the appellant at the trial, the examination in chief, as found in the ante-trial examination, would have been all that he would have brought
But it may be said that if a party calls a witness and examines him in the presence of the court, he is bound by the witness’s evidence in chief, if not by his cross-examination, and can not, therefore, as to the matter brought out in the examination in chief, to which the cross-examination related, discredit the witness. If the correctness of this position were conceded, as to the facts elicited and brought out on cross-examination, it would not be true; and a stronger reason is manifest for the application of a different rule, where a witness has been examined de bene esse, and his examination introduced in evidence, than where the witness is present in person at the trial and examined.
In the one case, as we have said, the whole examination must be introduced by the party at whose instance it has been taken; while in the other the party calling the witness only puts in evidence what is brought out by the examination in chief. In our opinion the examination before the trial is more analogous to answers elicited to interrogatories propounded, and we hardly think it will be claimed that the introduction of answers to interrogatories can control the course of the examination of witnesses at the trial. But if the introduction of the ante-trial examination of the appellant put him in the same position, as a witness, as if he had been called in person before the jury and examined, the contention of the appellant can not be maintained.
It has always been the rule that a party calling a witness who testifies in a given direction, is not concluded from showing by other witnesses the contrary of what the first witness testifies to. This much is conceded by the appellant.
The appellee, then, was entitled to prove by other witnesses that the particular testimony given by the appellant in his said examination was not, in fact, true; but it is contended that when the appellee was permitted to testify directly and specifically that no such conversation occurred
We think the court committed no error in its ruling complained of, and that this, appeal was taken for delay merely.
Judgment affirmed, with ten percent, damages.