Sing Cheong Co. v. Yung Wing , 59 Conn. 535 ( 1890 )

Andrews, C. J.

The plaintiffs are natives of the empire of China, resident at Shanghai, and carrying on business there as partners under the firm name of The Sing Cheong Company. The defendant, a native of China, is now a naturalized citizen of the United States and of this state. The complaint demands twenty-five thousand dollars damages. At the trial the plaintiffs offered to read certain depositions taken at Shanghai in China pursuant to a notice given to the defendant in this state. The defendant objected to the reading of these depositions on the ground that reasonable notice of the taking of the same had not been given, and also on the ground that they were not taken before proper authority. The court held and ruled that the notice given to the defendant was not reasonable or sufficient and that no reasonable notice was given to him or his attorney of the time and place of the taking of the depositions, and excluded them from being read. To this ruling the plaintiffs duly excepted. There were two sets of depositions offered. The objection to each was the same, and the ruling thereon was the same. The assignment of error upon the ruling in each case is in the same words:—“ That the court erred in excluding said depositions and in holding and ruling that the notice given to the defendant was not reasonable or sufficient and that no reasonable notice was given to the defendant or his attorney of the time and place of the taking of said depositions.”

It is urged by the defendant that the question of reasonable notice, and whether or not reasonable notice had been given, is a question of fact, which has been decided by the court below and cannot be reviewed in this court. By a long usage in this state this question of reasonable notice in the taking of depositions has been treated as so allied to the rules respecting the admission and rejection of testimony that it can be reviewed in the Court of Errors. Thus in Sharp v. Lockwood, 12 Conn., 159, it was compared to the evidence by which the loss of a deed was proved in order to let in secondary evidence of its contents. The court cannot admit the secondary evidence without finding the fact of the loss. But the question respecting the loss is often reviewed by the higher courts. Similar rulings have been made in repeated cases. Masters v. Town of Warren, 27 Conn., 299 ; Phelps v. Hunt, 40 id., 97; Harris’s Appeal from Commissioners, 58 id., 492. See also Lockwood v. Crawford, 18 Conn., 361, for a similar ruling as to “reasonable time.”

The legislature has not deemed it necessary to prescribe what length of time before the taking of the depositions the notice must be given. It has simply directed that reasonable notice shall be given to the adverse party. Gen. Statutes, § 1068. As to what length of time shall constitute such notice no definite rule can be laid down. Much must depend upon the circumstances of each particular case ; and something- also may properly be left to the wise legal discretion of the trial court.

Upon all the facts of this case we are satisfied that the decision of the Superior Court was correct. True, taking the mere computation of time, if the defendant had started promptly on the receipt of the notice and had met with no delay, there were daj^s enough for him to have gone from his home and reached Shanghai before the day of the taking of the deposition. But the number of days in time was only one of many considerations which it was proper for the court to take into the account. Some of the others are,— that the defendant resides in Connecticut, and is a widower with a family of small children ; that the claim made against him is a very large one, containing many items, and grew out of transactions that took place in China while the defendant was sojourning there in the years 1882 and 1883 ; that the witnesses whose depositions were taken were the plaintiffs themselves; that no attorney could properly cross-examine them without the constant personal instruction of the defendant; and that in all probability no attorney could be found in China who was acquainted with the laws and usages in the American States, aud that an attorney taken from America would not be likely to understand the Chinese language.

When depositions are to be taken in this state or in any of the United States, the length of time that notice should be given before the taking in order to be a reasonable notice, can be fairly determined by the length of time required to reach the place of the taking by the ordinary modes of travel, because all the things necessary to be done by way of preparation are pretty certainly known and a proper allowance of time can be made for them. But where depositions are sought to be taken in a remote country, of a strange language and an imperfect civilization, where the legal sanctions under which testimony is taken in civilized countries are entirely unknown, to reason about time in the same way that could be done in the former case is utterly misleading. All the analogies fail. The length of time required to reach the place of taking furnishes no safe guide for the reasonableness of the notice, because the things necessary to be done in order to be prepared for the taking are all incapable of being ascertained in advance. Other considerations than the time required for the journey there come in which may control the reasonableness of the notice. There were such other considerations in this case. The object of the statute is obviously to secure the utmost fairness and impartiality in the taking of depositions. In furtherance of that object the courts have ever been disposed to interpret it liberally, and to reject depositions which were taken contrary to the manifest spirit of the statute, although not strictly violating its letter. Dodd v. Northrop, 37 Conn., 218.

There is no error in the judgment appealed from.

In this opinion the other judges concurred.