98 Ga. 275 | Ga. | 1896
The plaintiff recovered a judgment. TLe defendants, amongst other grounds, moved for a new trial upon the ground that the court erred in overruling certain exceptions taken by the defendants to a set of interrogatories, and in allowing the answers to such interrogatories to be read in evidence. The exceptions were in writing and notice thereof given to the opposite party in due time. The answers were taken upon consent by a single commissioner under section 3891 of the code. The-exceptions were: (1) Because the package or envelope in which said interrogatories are contained having been sent by mail, the postmaster having received it from the commissioner has not certified
1. Tbe question is, ought the answers, under these circumstances, to- have been excluded? We think so. Due transmission of tbe result of tbe labors of a commissioner to take testimony is as necessary to its judicial recognition as is due execution of tbe commission itself, and so far as concerns tbe mere transmission of tbe answers taken, tbe provisions of section 3888 of tbe code apply as well to answers taken under section 3891 as to answers taken upon a commission regularly sued out. It bas been ruled by this court, that where interrogatories ai’e taken by consent, as under section 3891 of tbe code, tbe execution and return are not controlled by tbe usual provisions of tbe statute. Shorter v. Marshall, 49 Ga. 31. Tbe execution of a commission is tbe act of requiring tbe witness to- appear before tbe commissioners and depose in response to tbe interrogatories propounded. Tbe return is tbe statement made by the commissioners to tbe court touching tbe execution of tbe interrogatories. The execution of the- interrogatories and return by tbe commissioners must be complete before they are ready for transmission. When they are ready for transmission, section 3888 of tbe code provides bow and in wbat manner that may be accomplished. Before they can be received, they must be duly accredited to tbe court. They may be delivered by tbe person named as commissioner in person, or they may be delivered by some private band. In tbe latter case, tbe person receiving and delivering them in
It will be observed by reference to the cases of Shorter v. Marshall, 49 Ga. 31, supra; Fry v. Shehee, 55 Ga. 208, both were cases in which the question turned upon the execution of the consent entered into in lieu of a commission, and the return of the commissioners thereon. As to what constitutes the return of a commission, see Flournoy & Epping v. First National Bank of Jeffersonville, Ind., 78 Ga. 222. So it will be áeen that the question here is upon due transmission, and not upon the improper execution or return. The case of Davis v. Central Railroad, reported in 60 Ga. 329, is to the effect that, where counsel acknowledged service and waived copy, waived -commission and commissioners, consented that the witness write out his own answers and swear to them before a notary public, and seal them up and deliver them to the clerk without further
2. The other questions made upon the motion for a new trial are so> largely dependent upon the evidence thus illegally admitted, that without it they cannot be considered, and indeed could not arise, and hence their discussion is unnecessary. Judgment reversed.