167 Ind. 171 | Ind. | 1906
On the motion of appellee Bowker Fertilizer Company the court below struck appellant’s complaint from the files and dismissed his action, on the ground of a failure to give his examination as a party. This ruling is assigned as error.
Both the notice to appellant as a party and the subpoena issued for him as a witness provided for the taking of his examination at his dwelling-house, twelve or fourteen miles in the' country. It appears without dispute that appellant’s family consisted of his wife and five children, and that they dwelt in a house of three rooms; that there was no place therein to accommodate the attorneys and the notary public who would have been required to attend said examination; that appellant’s wife was of a highly nervous temperament, easily excited, and easily embarrassed before strangers, and that it would have been very embarrassing to her and the other members of appellant’s family to have had said examination taken there; that appellant had been advised by his attorneys that, as a matter of constitutional right, he was authorized to deny access to his home to the persons seeking to examine him; that for said reason, and because of his belief that the notice or subpoena for him to attend as a witness was insufficient, he absented himself
The order and judgment striking the complaint from the files and dismissing the action is reversed, at the cost of the party procuring said order.