36 Colo. 460 | Colo. | 1906
delivered the opinion of the court:
The action was brought by Healy to quiet title to- certain lots in Idaho Springs in which Doherty claimed an- interest. The title to the property in question at one time stood in the name of one Allan B. Wrisley, who had taken a deed absolute on its face from Doherty in the year 1885. Doherty held
The specific errors argued are that the court erred :
1. In refusing to quash plaintiff’s deposition.
2. In finding for the plaintiff, and in refusing to find for the defendant.
Before entering upon the trial of the cause, counsel moved to suppress the deposition of the plaintiff. We shall not consider the objections which go to*the validity of the commission for the reason that the commission is not contained in the abstract, and we shall presume that the court had authority to issue it and that the person before whom the testimony was taken was properly empowered. Counsel contends that the statute which authorizes the taking of depositions outside of the state refers to- witnesses only, and not to parties to the suit. This point was raised in the case of Railroad Company v. Pollard, 22 Wallace 341. In that
The syllabus is as follows: “In courts of the United States, under section 858 of the Revised Statutes, which enact * * * that in those courts no witness shall be excluded in any civil action because he is a party to- or interested in the issue tried, parties to a civil suit * * * may testify by deposition as well as orally, there being, under the act of congress, no difference between them and other persons having no interest in the suit.”
In Hart et al. v. Eastman et al., 7 Minn. 74, the court said: “The statute * * * declares who may and who may not be witnesses, and places a party on the same footing exactly, as any other witness, and the same statute provides # * * for taking depositions, without making any distinction between witnesses. Some reasons may be urged why a party should be always in court to prosecute and defend his cause, but there are many, on the ground of convenience^ and expense, why he should not be compelled to in all cases. The statute not making any difference between witnesses, we do not feel justified in creating one.”
To the same effect is the case Roberts v. Parish, 17 Ore. 583.
In Abshire v. Mather, 27 Ind. 381, the court says: “B-ut it is claimed that the deposition of a party to a
The statutes of this state, section 4882, Mills’ Annotated Statutes, declare: “Neither parties nor other persons who have an interest in the event of an action or proceeding shall be excluded.” This is practically the same language employed in- the federal statute that is construed' by the supreme court to authorize testifying by deposition. In the enumeration of- cases in which the testimony of a witness in the state may be taken by deposition, section 341, Mills ’ Annotated Code, declares such testimony may be so taken “when a witness is a party to the action or proceeding, or a person for whose immediate benefit the -action or proceeding is prosecuted or defended.” Section 348 provides that the testimony of a witness out of the- state may be taken by deposition in an action, at any time after the service of the summons or the appearance of the defendant. Counsel says that the clear inference to be drawn from these sections is that a party can give his testimony by deposition only when he is within the state. We cannot place such construction upon the statute. No distinction being made in section 348 between witnesses and parties, we must hold,' following the decisions we have cited, that the testimony of any person out of the state may be taken by deposition.
The testimony supported the allegations of the complaint and replication, and the court found that there had been a settlement between the plaintiff
Chief Justice Gabbert and Mr. Justice Campbell concur. _