delivered the opinion of the Court.
Thе declaration in this case presents an action in damages for property damage to an automobile arising out of a collision which occurred on State Highway 11, between Chattanooga and Cleveland. After defendants had filed pleas to the dеclaration, they caused the Clerk to subpoena the plaintiff for the purpose of taking plaintiff’s deposition. Plaintiff, on advice of counsel, did not appear, аnd thereafter similar subpoenas were served from time to time- on plaintiff, until one which was served on July 11, 1949, requiring plaintiff to appear on July 20, 1949. The case came on for trial July 28, 1949, and at that time, plaintiff moved the Court to quash the various subpoenas to take his deposition. Then defendants filed a motion calling for an instanter dismissal of the case because of plaintiff’s statement in open Court, that such subpoenas would not be obeyed. Thеreupon, the Court overruled plaintiff’s motion to quash the subpoenas and sustained defendants’ motion to dismiss. An order was accordingly entered, dismissing the cause. A motion for a new triаl was subsequently overruled, and the plaintiff has appealed.
Because the action was commenced on the pauper’s oath, defendants support their right to take the deposition of plaintiff under the following provisions of Code, Section 9806:
“The evidence of witnesses may he taken by deposition, in civil actions, by either party:
“(9) When the suit is brought by a party in forma ‘pauperis.”
The determinative question is whethеr the word “witnesses” as used in the foregoing, includes “parties to the record.” The historicаl background of the Code Section quoted persuades us that it did not include parties. Subsection (9) of Code Section 9806 was taken from Section 1 of Chapter 128, Public Acts of 1851-52. The оbvious purpose of said subsection was to ensure that poor persons who werе litigating should not be deprived of necessary witnesses on account of the inability of such parties to pay traveling expenses, etc. When the Act of the Legislature was рassed in 1851, parties of record were not competent as witnesses, and this incompetence was not removed until March 13, 1868, and the enactment of Chapter 75 of the Publiс Acts of 1867-1868. Therefore, it is historically impossible, State v. Nashville Baseball Ass’n.,
The only Tennessee cases considered by the defendants are, Weakly v. Miller, 1 Tenn. Ch. 523, 527, and Ducktown Sulphur, Copper & Iron Co. v. Fain,
“But either party may now have the benefit of his adversary’s testimony as a witness, in the usual way, withоut resorting to either a bill or petition for a discovery. Weakly v. Miller, 1 Tenn. Ch. [523], 527, 528.” Ducktown Sulphur, Copper & Iron Co. v. Fain,109 Tenn. 56 , 62,70 S. W. 813 , 814.
Neither in the case of Weakly v. Miller, supra, nor in Ducktown Sulphur, Copper & Iron Co. v. Fain, supra, was the deposition of a рarty taken, or attempted to be taken, as it was here by the defendants. Standing alonе, the foregoing quotation, however, might give the defendants some comfort, but as the authority of the Ducktown case was limited and defined by Judge Green in the later case of Nashville C. & St. L. RR. v. T. S. Jenkins & Sons,
This procedure by the defendants wаs an attempt to introduce into a State cause Federal pre-trial procedure. Whether or not it is beneficial or desirable is a matter for the Legislature and сannot, of course, be introduced by the Courts without the authority of a statute.
For the reasons stated, the judgment of the Trial Court is reversed and the cause remanded for further proceedings consistent with this opinion. Defendants will pay the costs.