20 Tex. 64 | Tex. | 1857
Of the numerous errors assigned in this case, but two are relied on by appellant.
1st. “The Court refused to allow the deposition of Rebecca Hopkins to be read in evidence.”
Interrogatories were propounded by appellant to Mrs. Rogers and Mrs. Hopkins. Mrs. Rogers having fully answered the several questions separately, Mrs. Hopkins made one answer in response to all of them as follows: “ The same answer made by my daughter, H. H. Rogers, to the interrogatories propounded to her and myself in said cause, and sworn to by her on the eighth day of January, 1856,1 hereby adopt as my answers, and I corroborate her statements in all the facts therein stated, which are material in said cause to said parties.” This sweeping answer was objected to by appellee “upon the ground of informality” and excluded by the Court.
If it should be held that the Court ought to have disregarded this objection, it not being in writing and notice given thereof, as is contended for upon the authority of the case of Scott v. Delk, (14 Tex. R. 341,) still the exception taken would not avail the appellant. Because the answer, if admitted, would have been cumulative, and from the qualification inserted in it, restricting her corroboration to the facts “which are material,” which is. swearing to facts with an undefined reservation, it could not have given any additional strength to the defence, and certainly would not have changed the verdict. This conclusion supersedes the necessity of a critical examination of the other questions that might have been considered under this assignment. (Able v. Sparks, 6 Tex. R. 349; Duffel v. Noble, 14 Tex. R. 640; Payne v. Benham, 16 Tex. R. 364.)
2d. “ The Court refused to allow Harriet Rogers to be introduced as a rebutting witness, unless her deposition, already read
From the order of proceeding on the trial, as exhibited by the statement of facts, the plaintiff below examined all his witnesses and read the depositions taken by him, and “here plaintiff rested his case.” Then defendant below introduced his witness John Peri, and also read the depositions of Mrs. Rogers. After this, as it appears by the bill of exceptions, the defendant below offered to introduce Mrs. Rogers as a witness “in order to prove by her certain facts as rebutting testimony, in opposition to testimony which he had no reason to anticipate, and especially to contradict the statements of,-Ferguson and partially those of Clark, both plaintiff’s witnesses.”
To which plaintiff objected upon the ground “ that her deposition had already been read in evidence, and consequently she was not competent as a witness unless the depositions were withdrawn wholly and she introduced as a witness de novo.”
The defendant not acceding to the alternative proposition contained in this objection, the Court excluded the witness from being examined.
The witnesses whose testimony was sought to be rebutted by an examination of Mrs. Rogers had been examined by plaintiff before her depositions were read. Her depositions stand in the place of an examination, the same as if she had been personally in Court. The effort to introduce her on the stand as a witness afterwards places the defendant in the legal attitude of recalling his witness for the purposes alleged in the exceptions. Was it error then in the Court to refuse permission to the defendant to recall his witness, to elicit facts not embraced in her previous examination ?
This has always been held to be an appeal to the sound discretion of the Court. (See Philips on Evidence, vol. 2, p. 408, 9; The People v. Mather, 4 Wend. 249; Law v. Merrells, 6 Id. 268.)
The practice has usually been, upon making this appeal to the Court, for the party to disclose the fact sought to be proved, and some reason or excuse why it was omitted in its proper place, to enable the Court to determine whether a relaxation of the general rule will be promotive of the ends of justice. This was not done in this case. There was a fairness too in the mode of making the objection, which precludes the conclusion that the discretion of the Court was abused in the rejection of the witness. Judgment affirmed.
Judgment affirmed.