Spear v. Coon

| Conn. | Oct 15, 1864

Dutton, J.

The only question in this case, worthy of serious consideration's, whether a deposition which has been used on a petition for a new trial in a case may be used again on a subsequent trial of the same case. Other objections have been made to what are claimed to be irregularities in the mode of taking the deposition. It was directed to the clerk of the superior, court, instead of, as the statute specifies, to the superior court, and although it was sealed up, the justice did not certify that it was sealed up by him. Whether either of these objections would have prevailed if taken when the deposition was first offered it is not necessary to decide. We would not however be understood as intimating ad opinion that there is any substantial difference between directing a deposition to a court and to the clerk of the same court, who in both cases would be the proper person to receive and open it, or that in the absence of any proof to .the contrary there would not be a legal presumption that the sealing up was by the officer who alone was authorized to do it. If the statute required the certificate of the officer to that effect it would present a different question. But it appears in this case that when the deposition was offered on the trial of the petition for a new trial, no objection was made on either of these grounds, and it must be considered therefore that it was waived.

We come then to the inquiry whether the deposition was admissible on the trial of the case after a new trial had been granted. We are clearly of the opinion that it was. We do not consider it necessary to examine the numerous authorities that have been quoted on both sides, which would be applicable only on the supposition that the petition for a new trial and the new trial itself were distinct cases. We do not so regard them. We consider them as parts of the same proceedings. The petition for a new trial has no object regarded as an independent process. The court is called upon to weigh the evidence introduced on the former trial with reference to some point in issue, in connection with new evidence introduced upon the same point, and determine whether justice requires that there shall be a new hearing. It is implied as a matter of course that the same evidence which is presented to the judge will be presented again to the jury on the new trial. It would be strange therefore if the evidence which is so taken that it is proper’for the judge to hear it, should not under similar circumstances be admissible for the jury to hear.

It is claimed that, admitting that the deposition was otherwise admissible, yet that it was taken at a distant place, in the absence of tbe other party, and that the deponent, who is a party to the suit, was a short time before the trial in the place where the other party resides. We know of no such ground for excluding the deposition. It does not appear that at the time of the trial the deponent was either in court or within reach of process. The objection assumes that the deposition was legally taken.

We see no ground for a new trial.

In this opinion the other judges concurred.