Moore v. Stoddard

206 Mass. 395 | Mass. | 1910

Sheldon, J.

1. It has been found that the questions filed by the petitioners for_ the taking of the depositions of the witnesses named therein were put in good faith for the purpose of procuring evidence to be" used at the trial of the issues. Clearly it could not have been ruled otherwise as matter of law. The contention now made by the respondents is that this court has not the right to issue such commissions, but that the questions can be filed and commissions issued only in the Probate Court, in which the petition was brought, and in which it is still pending, although it must be determined in this court whether the decree of that court shall be affirmed or reversed. Thayer v. Kitchen, 200 Mass. 382, 385. Crocker v. Crocker, 198 Mass. 401. Gale v. Nickerson, 144 Mass. 415. Dunham v. Dunham, 16 Gray, 577.

It is provided by statute that “the deposition of a person without this Commonwealth may be taken under a commission issued ... by the court in which the cause is pending.” R. L. c. 175, § 42. But it is settled by the cases above cited that these causes are pending in the Probate Court, and that the only question which is pending in this court is as to the validity and propriety of the decree appealed from. Accordingly the respondents contend that only the Probate Court can issue the commissions now asked for.

We are of opinion however that the respondents’ contention cannot be adopted without putting too narrow a construction upon the words of the statute. Depositions are taken in order that the evidence of witnesses whose attendance in court cannot be secured may yet be available for the furtherance of justice. Statutes passed for this purpose should be construed broadly and liberally to effectuate their end. Commonwealth v. Trent, 117 Ky. 34. Taylor v. Goodwin, 4 Q. B. D. 228. It would be incongruous to require that depositions which are to be used in one court should be taken by the process of another court in which they are not to be used and which has no control of the witnesses, or that it should be left for the court whose decree is appealed from to determine whether any and what evidence from absent witnesses should be procured for the purpose of showing mistake or error in its own action. A construction which would lead to such a result is to be avoided if that fairly can be done. The manifest intention of the Legislature, as gathered from its language considered in connection with the existing situation and the object aimed at, is to be carried out. This rule has been declared in many of our decisions. Somerset v. Dighton, 12 Mass. 383, 384, 385. Whitney v. Whitney, 14 Mass. 88, 92, 93. Burlingame v. Bell, 16 Mass. 318, 320. Staniels v. Raymond, 4 Cush. 314, 316. Cleaveland v. Norton, 6 Cush. 380, 384. While it is true as we have seen that these causes in the strict sense of the word are not pending in this court, yet the appeals are to be determined here, and in popular language it might be said that the causes themselves are pending here for that determination.

We are of opinion that the commissions asked for should be issued.

2. The right to interrogate the adverse party in the Probate Court was first expressly given by St. 1879, c. 186, now contained in R. L. c. 162, § 41, which provides that “ in proceedings in probate courts, the petitioner or the respondent may, at any time after the filing of the petition, file interrogatories in the register’s office for the discovery of facts and documents material to the support or defense of the proceeding. Such interrogatories shall be answered under oath by the adverse party in the same manner and subject to the same restrictions and regulations as are provided by chapter one hundred and seventy-three relative to interrogatories in civil actions.” When this statute was enacted, the parties to actions at law had the right to interrogate each other. St. 1851, c. 233, § 98. Pub. Sts. c. 167, § 49. R. L. c. 173, § 57. The Legislature intended to substitute for the tedious, expensive and complex process of a bill of discovery an easy, cheap and simple mode of obtaining evidence from an adverse party. Wilson v. Webber, 2 Gray, 558, 561. The privilege was given also to parties in equity suits by St. 1862, c. 40, § 1, Pub. Sts. c. 151, § 8, R. L. c. 159, § 15. We think it plain that the Legislature by the St. of 1879 (R. L. c. 162, § 41) intended to extend to probate courts the same power of requiring parties to answer interrogatories that was already possessed by other courts in the trial of issues of fact. It thus became a part of the general power of the courts to require answers to proper interrogatories filed by the adverse party. In this court probate appeals are treated for most purposes as cases •in equity. R. L. c. 162, §§ 15, 28; Equity Rules 38, 39. Much of what has been said as to the taking of depositions is applicable also to interrogatories to parties. Even however if we should adopt the contention of the respondents that the language of R. L. c. 162, § 41, authorizes the filing of interrogatories to adverse parties “in the register’s office” only, we are yet of opinion that under its general equity powers and the provisions of R. L. c. 159, § 15, this court may upon such appeals as are now before us allow interrogatories to be filed and require them to be answered, and that this power is not taken away or diminished by anything in R. L. c. 162, § 41.

This question was expressly left unanswered in Gray v. Parke, 155 Mass. 433.

3. The petitioners did not waive their rights by their stipulation with the respondents. Nor is there anything in the interlocutory order made upon that stipulation which deprives them of their rights. The motions made were then not passed upon, and the order that “ no commissions are to be issued by this court and no answers to interrogatories are to be required in this court ” was plainly intended to take effect only upon the stipulation of the parties being carried out. When the Probate Court refused to act upon the stipulation, the interlocutory order made thereon must be treated as having fallen with the stipulation upon which it was based. It would have been perhaps more regular if the interlocutory order had been in terms revoked, but that formality was not indispensable.

The order of the single justice must be affirmed; the motion of the petitioners must be allowed; and the motion of the respondents that they be not required to answer the interrogatories propounded to them by the petitioners, and their objection to the issuing of commissions for the taking of depositions, must be overruled.

iSo ordered.