39 S.C. 338 | S.C. | 1893
The opinion of the court was delivered by
For a proper understanding of the questions raised by this appeal it is necessary to make the following statement derived from the “Case.” It appears that the summons was personally served on the defendant on the 22d of September, 1892, and the 12th of October, 1892, was the day appointed for the trial. On the 11th of October, 1892, defendant’s counsel was served with a notice in writing by plaintiff’s counsel that at the expiration of four days from the.service of the notice, application would be made to the trial justice “for a commission to take the testimony de bene esse in writing of Ed. L. Greene in answer to the within interrogatories.” To this notice was appended an affidavit of the materiality of the witness, and of his residence beyond the limits of the State, to wit: at Yadkin College, N. 0. Pursuant to this uotice the trial j ustice, on the 15th of October, 1892 — the trial of the cause being continued until the 19th of October, 1892 — granted an order appointing W. S. Owens, a notary public of Yadkin College, N. 0., to take the testimony above referred to. It appears from the certificate of said W. S. Owens, under his notarial seal, that the testimony was taken on the 17th of October, 1892, and enclosed to the trial justice. When the case came up for trial, on the 19th of
If, however, the ground of objection was, that the parties to the cause did not “have notice thereof in time to be present, if they, or either, should choose to be present,” as required by section 849, as it originally read, a sufficient answer would be that defendant did have notice, on the 11th of October, 1892, of the proposed examination, which was not had until
The judgment of this court is, that the order appealed from be reversed, and that the case be remanded to the Circuit Court for a new trial of the appeal under the views herein announced.