47 W. Va. 79 | W. Va. | 1899
This was a chancery suit in the circuit court of Wetzel County by George W. Shepherd, committee of Martha L. Noland, and said Noland, against R. E. L. Snodgrass and others, to annnul several deeds made bv Martha E. No-land, on the ground of her mental incompetency to make them, resulting in a decree dismissing the bill, from which the guardian has appealed.
The first question raised is want of jurisdiction, as, though Martha Noland was a co-plaintiff, she is not an appellant. It seems to me that the committee can alone appeal. Likely, though a committee has no legal title, he could sue alone to annul a deed of his non compos, under Code 1891, chapter 58, section 37, giving him the right to the possession of the estate of the non compos and to sue in respect to it; and more clearly still, where the non compos is a co-plamtiff, the committee may alone appeal by reason of his representative interest. 2 Enc. PI. & Prac. 158,161.
A question arises when we come to consider the appeal on its merits. The appellant asks us to reverse the de
Another objection is that the captions or certificates to depositions do not insert the names of the witnesses. Why this departure from form and usage I do not see; but as the names of the witnesses appear at the head of each deposition, and the notary certifies that “the foregoing depositions of witnesses” were taken, etc., I conclude this will do.
The next exception is based on the fact that the depositions were taken in shorthand, and afterwards written out in longhand, and never seen by or read over to the witnesses in longhand, or signed by them. What is the effect of this mode of taking depositions?
They are not good. In Moller v, U. S. 6 C. C. A. 459, 57 Fed. 490, 13 U. S. App. 472, it was held by the circuit appellate court that depositions taken down in questions and answers by a stenographer, and not reduced to writing in the presence of the witness, nor read over to or by him, are not properly taken, and not admissible against the objection of either party. In Re Cary (D. C.) 9 Fed. 754, it was held that depositions taken by a stenographer before a register, and afterwards reduced to longhand, will be suppressed, if not read to and signed by the witness, according to general order ten, after they are written out. That order says, “that the depositions shall be taken down in writing by or under the direction of the witness, and signed by him in the presence of the register.” But this I understand to be only general practice. In Zehner v. Navigation Co., 41 Al. 464, 187 Pa. S. 487, it was held that “a deposition taken by a stenographer in shorthand, after being written out in longhand, must be scrutinized, assented to, and signed by the witness.” The opinion says:
And it is to be remarked, as weakening the plaintiff’s case, that the evidence to attack the deed is largely mere opinion of nonexpert witnesses, which has been held to be nearly worthless, unless stating facts warranting such opinion. Kerr v. Lunsford, 31 W. Va. 659, (8 S. E. 493), 2 L. R. A. 668. These witnesses do not give facts very strong to sustain their opinion. On this mass of evidence different judges might come to different conclusions. At best, it is only matter of opinion. I have myself been indecisive in mind as to it. There is the decision of the circuit court, and we cannot reverse it, unless we can find its decision clearly wrong. When I reflect upon the legal principles above stated, and the conflict of evidence, I am quite decided that we must leave the cases as decided by the circuit court. Had that court decided otherwise, we would not reverse, but here are both the decision and the strong presumption of sanity to forbid reversal. Decree affirmed.
Affirmed.