Stephens v. Joyal, 45 Vt. 325

Stephens v. Joyal

45 Vt. 325 | Vt. | 1873

The opinion of the court was delivered by

Redfield, J.

I. The appellee improved Adam Edwards as a witness, to prove that his father, George Edwards, (the former *328husband of the defendant administratrix,) died in the year 1854; and on cross-examination, he denied that he had ever said “ that ■he received a letter in 1861, stating that the said George Edwards was dead, but he knew better, as the letter was in Ms father’s handwriting.” He also denied that he had told his sister-in-law, in 1861, that “ his father (the said George Edwards) had gone back to live with Margaret again.” The appellant then offered to prove by the sister-in-law of said Adam, and other witnesses, that the witness did make the declarations which he denied on the stand. These declarations were clearly inconsistent with the testimony of the witness given in chief; and we think the testimony admissible to contradict and impeach the witness. The counsel for the appellant, in argument, claim that the testimony was admissible as substantive evidence to prove that the said George Edwards was living in 1861; and it is not improbable that the court may have understood that the evidence was offered solely for that purpose. But, for the purpose of impeachment, it was admissible, and its exclusion for all purposes, we think was error.

II. The deposition of Richard Moore was rejected on the ground of defect in the caption. The parties are described in the citation as, “ Aretus Stephens is plaintiff, and Margaret Joyal, so called, administratrix of the estate of Joseph E. Joyal, is defendant”; while in the caption, the parties are described as, “ Aretus Stephens as plaintiff, and Margaret Joyal, so called, is administratrix, is defendant.” On the docket the case is entitled, “Aretus Stephens v. Joseph E. Joyal’s Estate.” There is no claim that the adverse party suffered for want of notice, by reason of defect in the citation ; and the docket entry is no part of the deposition; nor does it necessarily give the true title of the cáse. The sole inquiry is as to the sufficiency of the title of the case and description of the parties, in the caption of the deposition. The statute form requires that the caption should state the names of the plaintiff in the “ cause.” The plaintiff is properly named in this caption ; and the defendant is stated to be “ Mar•garet Joyal, administratrix,” but.the estate which she represents is not named, and we think it not necessary that it should be. *329Margaret Joyal is, in fact, the party defendant. She represents the estate, but the estate is not the party. The' caption states that, she defends as administratrix. It was held in Dupy v. Wickwire, qui tam, 1 D. Chip. 237, referred to by the defendant, that the caption of a deposition in a suit brought qui tam, need name only the prosecutor as plaintiff, omitting the qui .tam. The “ qui tam ” is merely descriptive of the character of the suit, but not a necessary part of the name. . An administrator may in many cases, declare in his own name in matters touching the estate, omitting altogether allegations of his representative character. Perrin v. Granger et al. 33 Vt. 101; Aiken v. Bridgman, 37 Vt. 249. No case has been cited, and we are aware of none in this state, that would establish so stringent a rule as would exclude this deposition for defective caption. And since by statute the use of ex parte depositions is excluded, the court feel no inclination to extend the criticism of technical forms, for the purpose of excluding testimony taken on fair notice to the adverse party. A substantial deviation from the requirements of the statute, especially when the adverse party may have suffered thereby, must always operate to exclude the testimony. But we do not deem this of such a character. "VYe think the deposition legally admissible for some purposes, and that its exclusion was error.

The judgment of the county court is therefore reversed, and the cause remanded.