Kea v. Robeson, 39 N.C. 427, 4 Ired. Eq. 427 (1847)

June 1847 · Supreme Court of North Carolina

39 N.C. 427, 4 Ired. Eq. 427

JAMES E. KEA vs. JOHN A. ROBESON, Ex’r. &c.

A notice to take a number of depositions, on the 1st, 2d» 3rd, 4th, 5th, Gth» 7th, 8th, 9th and 10th, of a particular month, does not, of itself, furnish si ground for suppressing the depositions.

Where, under this notice, the plaintiff took twenty-six depositions on the 1st and 2nd of that month, and the only one of the defendants, who complained, was present on those days, there can be no reason whatever fo suppressing those depositions on the ground of the indefiniteness of the notice.

Appeal from an interlocutory order, made iiithe Court of Equity of Bladen County, at the Fall Term 1846, his Honor Judge Settle, presiding.

This is an appeal from an order suppressing depositions in a suit in Bladen Court of Equity, against John A. Robeson and several other defendants! The plaintiff gave the defendants notice, that he would take the depositions of Joseph M. Gillespie and many other persons therein named at L. MacLeod’s store in Bladen on the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, and 10th, days of June, 1846. On the 1st and 2nd days of June the plaintiff took depositions, to the number of twenty-six, before the Clerk and Master at the place mentioned. One of the defendants was an infant, and one James Robeson was his guardian dd litem ; and he resided about thirty miles from MacLeod’s and did not attend, Josiah Maultsby, another defendant, resided about twenty miles off, and did not attend on the 1st, but did on the 2nd day of June. The defendant John A. Robeson resided two miles from MacLeod’s, and was present at the taking of all the depositions.

When the Master was passing on the depositions.in the cause, the defendants objected to those twenty-six upon the ground of the number of days specified in the notice. But the Master allowed them to be read ; and the defendant, John A. Robeson, appealed to the Court. The Master then reported the facts ; and upon his report the-Court reversed the Master’s decision and suppressed those depositions, but allowed the plaintiff an appeal to this Court.

Strange, for the plaintiff.

Badger, and Warren Winslow, for the defendants.

Ruffin, C. J.

The Court is of opinion, that the depositions ought not to have been suppressed. It is true, that, under the notice, it might be possible for the plaintiff to impose on the defendants the necessity of an inconvenient detention, or practise a surprise on them, as by not obtaining the attendance of the witnesses or not proceeding to examine them, until the term of nine days, embraced in the notice, was near expiring, or when, the opposite parties happened not to be present. It need not be said, if such appeared to have been the course of the plaintiff, or if there were any just grounds for suspecting that he intended such abuses, this Court would at once concur with his Honor. But we do not perceive any such ground of suspicion. Then umber of witnesses was considerable, and it could not easily be anticipated how long it might require, under prolix cross-examinations, to take the depositions, or that some of the witnesses might not be able to attend on the earlier of the days. It would have been quite proper for the plaintiff, as is common, to have given the notice, that he would take the depositions on a particular day, and from day to day thereafter, until completed, As acted on, this was in substance a notice of that kind, and was intended so to be, as far as we can see. For the plaintiff collected his witnesses on the first day and proceeded immediately to examine them to the large number of twenty*six ; thus shewing an intention to take his evidence in good faith and without imposing any unnecessary or avoidable inconvenience on the defendants. The objection could not, therefore, have been sustained, if it had been taken by a defendant, who was not present at the taking of the depositions. But neither the infant defendant, nor Maultsby, complained of the Master’s order, and the appeal, therefore, was taken by John A. Robeson alone, who lived within two miles of the place of taking the depositions, and was present during the whole time of taking them. The pleadings are not before us on the present appeal, and we are not informed of any interest of that defendant in the attendance of the others, which can give him a right to insist on an error against them, which they think proper to acquiesce in. At all events, then, it was erroneous to reverse the decision of the Master at the instance of that defendant by himself.

The opinion of the Court, therefore, is, that the order of his Honor must be reversed, and that of the Master,, allowing the depositions to he read, affirmed, with costs in this Court,

Per Curiam.

Ordered accordingly.