92 W. Va. 236 | W. Va. | 1922
An adverse ruling upon an objection to the admission of a deposition in evidence constitutes the basis of all of the assignments of error set forth in this case. Presumptively, it was the sole ground of the motion to set aside the verdict, since no other is urged here, for reversal of the judgment.
• The action was assumpsit by the trustee appointed in a bankruptcy proceeding against A. R. Stacy, for recovery from, the defendant, H. W. Bias, of $3,316.00 in money and the value of certain other property, alleged to have been received from Stacy and retained by him, in fraud of Stacy’s creditors and by way of preference over them, in violation of the bankruptcy statute. Defense was made upon the ground' of payment of the money upon bona fide indebted
The deposition in question is that of Stacy’s wife, taken by a notary public, in the State of North Carolina, in April 1921, and certified on the 28th day of that month. It was no doubt transmitted to the clerk of the Circuit Court of Cabell County under seal, immediately after it was transcribed from the stenographic notes. The trial in this case occurred September 15, 1921, the jury having been impaneled in the evening of the preceding day, and no objection was made to the deposition, until late in the evening of September 13, 1921, when it was brought to the attention of opposing counsel only. Upon the offer thereof in evidence, objection to its introduction was interposed upon the grounds, of lack of the signature of the deponent and variance of the deposition, as written, from the testimony of the witness as given before the notary, the latter contention being founded upon her affidavit made September 3, 1921, and saying she had, on that day, read the deposition, for the first time and upon her first opportunity to do so, and found it incorrect. In what respect or to what extent it is incorrect, the affidavit does not indicate.
That the statute, sec 33 of ch. 130 of the Code authorizes omission of the signature of the- witness, in the case of a deposition taken in shorthand and certified in the manner therein prescribed, is admitted; but the notary’s certificate is assailed on the ground of insufficiency, and validity of the unsigned deposition denied, in view of the alleged defect in the certificate. In other words, admissibility of an unsigned, but properly certified, deposition is conceded and admissibility of an unsigned, but insufficiently certified deposition, denied. This deposition was taken by B. T. Woodall, notary
The objection to the certificate is well taken. The last clause of the section in question, requiring the officer before whom the deposition is taken, to certify that another person taking it in shorthand was sworn correctly to take and accurately to transcribe it, is not a substitute for the preceding clause. It merely requires certification of a further or additional fact. To hold otherwise would ignore the phrase in the preceding clause, “or under his direction and supervision, ’ ’ for that phrase can have no application or operation, when the officer himself does the writing. Under the rules of interpretation, some force and effect must be allowed it. This construction is further fortified by the context. The section provides, in the first place, that depositions may be taken in shorthand, without saying who may do the writing. Then it provides for the case in which the officer does it, and requires him to certify that he did it correctly and accurately. In this connection, it drops in the phrase for certification of correctness and accuracy of work done under his supervision, which can have no application to work done by himself. Finally, it requires him to certify, in the case- of the actual writing by a person other than himself, that he swore the person who did the writing, and that is the only case in which the phrase in question can apply. If not used there it is inoperative, for there is no other case in which it can have any reasonable or efficacious operation. It cannot be assumed that the Legislature intended an undue and unnecessary relaxation of the1 sanctions under which courts are to receive evidence. In the requirement that depositions be taken before certain classes of officers, there is perceived a manifestation of legislative intent that such officers shall
If the deposition was properly taken, the certificate, on objection, could have been amended. Borders v. Barber, 81 Mo. 636; Fosdick v. Bullock, 12 Hun. 200; Seconders v. Erwin, 2 How. (Miss.) 732; 6 Ency. Ev. 483. If amended, the statute would then have been compiled with. The deposition
The doctrine of waiver, as applied to depositions, goes much beyond that. A motion to suppress is the usual mode of objection to a deposition in its entirety. Blackburn v. Crawford, 3 Wall. (U. S.) 175; Bibb v. Allen, 149 U. S. 481; Mosier v. Knox College, 32 Ill. 155; Johnson v. Chicago R. I. & P. R. Co., 51 Ia. 25; Watson v. Melchor, 42 Mich. 477; American Pub. Co. v. C. E. Mayne Co., 9 Utah 318; 6 Ency. Ev. 561. Orderly procedure requires such motion to be made before trial, to the end that the defect may be corrected by amendment or the retaking of the deposition; and, in almost all jurisdictions, failure to make it before trial works a waiver, by virtue of statutes or the common law as judicially declared, unless the objection is based upon ineompetency of the witness or irrelevancy of the evidence. In these two cases, the reason of the rule fails and it ceases, because the depositions are incurably defective and the party offering them is not injured by the delay. In the absence of a statute, failure to move to suppress before trial waives the defeat, except in the two instances just mentioned. . Cabell Co. v. Mathers, 72 W. Va. 807; Supply etc. Co. v. Consolidated etc.
Tn this instance, the witness is not incompetent, her evidence is relevant and the certificate was amendable, if incorrect in its omission of the statutory phrase to which reference has been made. If the deposition was properly taken, only amendment of the certificate would have been necessary. If it was not, the deposition could have been retaken and the errors in it, if any, corrected. No objection on either ground was brought to the attention of the court, until the deposition was offered in evidence. Under the authorities above referred to, the defects were waived by delay. This conclusion apparently conflicts with the ruling in Shepherd v. Snodgrass, 47 W. Va. 79; but it is to be observed, that the doctrine of waiver was not examined in that case, and also that the deposition would not have had any appreciable weight, under the circumstances disclosed, if it had been admissible; wherefore the court stopped with its conclusion that the deposition was defective. If it had gone further and reversed the decree and a petition for rehearing had been filed, invoking the doctrine of waiver, it might have been held to be applicable. We do not regard the decision in that case as a deliberate holding against the views and conclusion here expressed.
Neither in the petition nor in argument, is any ruling as to the admission of evidence, except the one dealing with the objection to the deposition in its entirety, made the subject of an assignment of error, formally or informally. The court will not search through the certificate of evidence, for
Seeing no error in tbe judgment, we will affirm it.
Affirmed.