Bryant v. Hutchinson , 30 Ala. 441 ( 1857 )

WALKER, J.

The two interrogatories, and the answers to them, to the exclusion of which the defendant excepted, were offered separately. When the court ex-eluded the answer to the former, it was not informed that the answer to the latter would be offered; and when it excluded the answer to the latter of the two interrogatories, there was no offer to read the answer to the former in connection with it. Neither of the answers, separately-considered, shows, as I understand, prima facie, the relevancy of the testimony: and I think the judgment of the court below ought to be affirmed. Besides, I incline to the opinion, that the declarations proved in answer to the latter of the two interrogatories cannot be regarded as a part of the res gestee, and that the answer might have well been excluded on that ground. I do not think we can intend, for the purpose of reversing the judgment, that the two answers to the interrogatories were offered in connection, or that the proposition was to read the entire deposition, and that upon the reading of the deposition the two answers were excluded. — Bilberry v. Mobley, 21 Ala. 277; Abney v. Kingsland, 10 Ala. 355. But my brethren differ from me, and regard the answers separately as prima-facie relevant; and think, also, that the entire deposition must be considered as having been offered, and that the counsel offering it was simply proceeding to read the answers to the interrogatories in the order in which they occur, and that the judgment of the court below ought to be reversed. They refer to the following authorities : Leigh v. Lightfoot, 11 Ala. 935; Cuthbert v. Newell, 7 Ala. 457; Smith v. Armstead, ib. 698; Laroque v. Hatch, ib. 798; Bell v. Pharr, ib. 807.

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