Waller v. Gibbs , 10 Ala. 131 ( 1846 )

GOLDTHWAITE, J.

We do not understand the plaintiff in error as denying the identity of the question involved in this suit, with that involved in the one in which the deposition was taken. In the absence of a specific objection in the court below, pointing directly to that cause, we think it must be taken that this suit is included in that agreement. The precise point which the counsel presented in the court below, seems to have been, not that the agreement did not extend to this cause as well as the others, but that Williams was not bound by it, inasmuch as, when made, he was no-party to these suits, and therefore is bound by no previous stipulations in regard to them. It is too evident to require illustration or argument, that a party, who becomes so after proof is taken in a cause, and is not the representative of some party previously made, he is not bound by it, for the reason that no opportunity has been given him to cross-examine. That, however, is not this case, as here there was no necessity for proof against the new party, because his answer admits every fact which is essential to the relief of the complainants.

The only reason why Williams is a necessary party to this suit is, for the protection of his co-defendant, by concluding him if the complainants have a decree. [Harrison v Brooks, 2 Ala. Rep. 209; Gibbs v. Frost, 4 Ib. 720.] When therefore he entered into the consent rule, and took out the commission to examine Williams, the defendant must be considered as declining to insist on his being made a party, and certainly if he had then answered, without raising the objection, the omission of Williams would not have prejudiced the complaints. If under such circumstances, the deposition of Williams was competent evidence, and made out the case why should there be a re-examination ? Certainly not to accumulate proof against the defendant, as to whom the case was already proved. As to the new party it was equally unnecessary, in consequence of the admissions of the bill. Indeed it may well be questioned whether the evidence of Williams could be used against his co-defendant, if his own answer did not admit the complainant’s case. The rule is, that a complainant cannot have an adverse decree against a defendant whom he examines as a witness ; and the reason is, it would be charging him by his evidence, which, as against himself, can only be obtained by his answer in the usual way. (Palmer v. Van Dosen, 2 Edwards, 192,] But when it appears from the answer of a defendant, or from his having suffered the bill to be taken as confessed, that he is ultimately liable, he stands indifferent, and may be examined as a witness. [Lupton v. Lupton, 2 John. Ch. 614; Bradley v. Root, 6 Paige, 632.] It is not necessary to inquire how far the relation of this witness to the cause would be changed, if his answer was entitled to be considered as denying the equity of the bill. As the case stands, we think his deposition is not liable to exception, on account of his being subsequently made a party to the suit, and that it is within the terms of the agreement.

2. It remains only to inquire whether, when the party taking the deposition declines to use it, the opposite party, who has cross-examined may do so. It seems to admit of question, whether under the practice pursued under the English 'courts of chancery, the complainant is entitled to read the cross examination of the defendant’s witnesses, when the latter declines to read the examination in chief. [Smith v. Biggs, 5 Sim. 391.] We can readily assent there is an apparent incongruity in allowing the complainant to make his case out of a cross-examination, but even with this idea in view, it does not seem to be a sufficient reason to prevent either party from availing themselves of evidence which is partially their own by the cross examination. But waiving this inquiry in the present case, as well as the effect of our own rules, we think the consent to take the depositions, and that the same might be read,' entitles either, party to read them as a part of his own case. '

We are unable to perceive any error in the questions argued, and have purposely omitted all consideration of the correctness of the decree, as it seems not to be questioned.

Decree affirmed.