Melton v. Troutman , 15 Ala. 535 ( 1849 )

DARGAN, J.

It is the duty of a party objecting to evidence, to point out with certainty, the evidence he deems objectionable. If it is offered by way of deposition, and the objection is to the whole deposition — the whole must be illegal, or there is no error in admitting it. If a part of the deposition only is illegal, the objection must point out the illegal part, and if it does not, the court may overrule the objection. 4 Ala. 265 ; 2 ib. 280.

Any other rule of practice, than this, would lead to results that would be intolerable, as it would impose on the court, in the midst of the trial, the necessity of suspending it, and examining the whole deposition, and excluding such portions as the judge might deem illegal, although in the opinion of the party objecting, the portion excluded by the court, might be legal. So, too, a party offering testimony, some of which is legal, and some illegal, if the court reject the whole, it is not error, for it is the duty of the party offering the testimony, to separate the legal, from the illegal, and if he will not, the court may reject the whole. Smith v. Zaner, 4 Ala. 99; Elliott v. Pearsall, 1 Peters, 328.

When, too, exceptions are taken to the ruling of the court below, in excluding testimony, the exception should point, with sufficient certainty, to the testimony rejected, to enable this-court to ascertain the character of the testimony, and determine whether it is legal, or illegal.

Guided by these general rules, we can find no error in the record. The objection was to the whole of the deposition of Jones, when it is certain that portions of it were legal testimony, at least for the purpose of showing, that the defendant was not actuated by malice, in suing out the attachment. One of the counts in the declaration, alledges, that the attachment was vexatiously sued out. Under this, he was entitled to vindictive damages, if the defendant had procured the issuance of the process maliciously. McCullough v. Walton, 11 Ala. 472; Donnell v. Jones, 13 Ala. 490.

2. The plaintiff, who was the defendant in the attachment shit, filed interrogatories to the defendant, for the purpose of proving, that the note on which the attachment was issued, was usurious. And in order to obtain an order of the court, allowing the interrogatories to be filed, he made oath, in conformity with the statute, setting out the facts constituting the usury. The defendant answered these interrogatories, and they were returned to the court in which the attachment was pending. The plaintiff, by way of rebutting proof, offered to read the answers of the defendant, taken in that suit, together with so much of the interrogatories, and the affidavit made by the plaintiff to obtain the order allowing them, as was necessary to understand the answers, but did not point out what interrogatory, or what part of the affidavit, was necessary for this purpose; but the answers, interrogatories, and affidavit, were all offered at once. The court decided that the answers might be read, but rejected the affidavit of the plaintiff, and the interrogatories.

We will not consider whether an interrogatory, which has been answered, may not become evidence for the purpose of explaining the answer, and to give it its full force and effect; but it is very certain, that when a mass of written evidence is offered, some of which is not admissible, and it is only said, that so much is offered, as will explain some evidence that is legal, without pointing out the necessity of any explanation, or what particular part is relied on for this purpose, the court may reject the whole. If there was any necessity for reading any one of the interrogatories, for the purpose of explaining the answer, the party offering the interrogatory, should have pointed it out to the court below. As he did not do so, the court properly rejected both the affidavit of the plaintiff, and the interrogatories.

It is, however, now contended, that the answer admits material facts in the affidavit of the plaintiff to be true, and thus the affidavit of the plaintiff is legal proof against the defendant. If the affidavit of the plaintiff, had been offered as evidence in the court below, because it had been admitted to be true, we think the circuit court would have allowed it to go to the jury. But it does not appear from the record, that it was offered as evidence on that ground, but solely on the ground of explaining the answers. We have, however, looked both to the answer, and the affidavit, and we find nothing admitted in the affidavit, that is not distinctly stated in the answer, by reading which, the plaintiff would have obtained the full benefit of every fact, admitted in the affidavit to be true.

There is no error in the record, and the judgment must be affirmed.