Reeves v. Allen , 42 Ind. 359 ( 1873 )

Downey, J.

The only question in this case is, whether or not depositions of witnesses may be taken out of the State, in an action pending before the mayor of a city, who, by law, has the jurisdiction and powers of a justice of the peace. The common pleas decided that they could not be taken. We are of the opinion that this decision cannot be maintained. Prof. Greenleaf says: “ This method of obtaining testimony from witnesses, in a foreign country, has always been familiar in the courts of admiralty; but it is also deemed to be within the inherent powers of all courts of justice.” 1 Greenl. Ev., sec. 320.

But however this may be, we think the question in this State is settled by statute. It is enacted, in sec. 49, p. 591, 2 G. & H., that “ depositions of witnesses or parties residing out of the county, or sick, or about to leave the same, may be taken under the rules prescribed by law for taking depositions; and if such party or witness be absent from the county or unable to attend at the trial, may be read as evidence in any cause; and no dedimus shall be necessary in such case.” The question, whether a dedimus or commission is necessary when the deposition is taken out of the State, is not before us in this case, and need not be decided, for there was a dedimus or commission issued by the mayor, in pursuance of which the deposition was taken.

The judgment is reversed, with costs, and the cause remanded, with instructions to grant a new trial, to overrule the motion to suppress the deposition on the ground stated, and for further proceedings.