Dickerson v. Askew , 82 Miss. 436 ( 1903 )

Qaxiioon, J.,

delivered the opinion of the court.

This is a case of general equity cognizance. It does not involve, and is not in any way similar to, matters testamentary or of administration, or minors’ business, or cases of persons of unsound mind, or motions to confirm sales, mentioned in the first clause of section 1764, Code 1892. Proceeding under that clause, appellee gave written notice that she would ask leave to have witnesses examined in open court, no depositions having been taken. The court below, over appellant’s objection, permitted oral evidence, and on that decreed for Mrs. Askew, and complainant, who is also defendant to a cross-bill, appeals, without any evidence appearing in the record, from the overruling of his motion for decree on the pleadings.

The rule was universal to try all equity causes on depositions. It is, of course, and must remain, universal to the full extent not changed by statute. It has never been changed unless by legislation, the history of which we will quite summarily review.

When we had the probate court system, it was permitted to introduce oral evidence in matters pertaining to the jurisdiction of that court. The constitution of 1869 (section 16, art. 6) gave all this jurisdiction to the chancery courts, whereupon' the legislature saw fit to apply the probate practice to the new jurisdiction of the chancery courts, and allow oral testimony as to that (Code 1880, secs.-1950, 1951), but did not require notice that witnesses would be produced for oral examination., In this state of the law there was enacted a section in the Code of 1892 as follows: '

“1764 (1950, 1951). Witnesses Examined in Open Court in Chancery. In all proceedings in matters testamentary and of administration, in minors’ business, and in cases of persons of unsound mind, and on the hearing of motions to confirm sales, and in similar cases, witnesses may be produced and examined in open court; or their depositions may be taken as in other cases in chancery courts. In all cases where the party shall desire to have the witnesses examined in open court, he shall, before any depositions have been taken, file a notice to that effect, or the parties may agree in writing in any case to have all or a part of the witnesses examined in open court; but this shall not change the rule as to nonresident witnesses or cases in which depositions generally are authorized.”

Is this section restrictive or enlarging? Was it the purpose to radically change the general equity rule of practice of taking evidence by deposition only, or was it to prevent oral testimony, even in probate court matters and the confirmation of sales, except upon notice ? The inquiry must begin, proceed, and end in full view of the thoroughly well settled canon of interpretation in Mississippi that the common law stands unless a legislative design to change it plainly appears in a statute. If the purpose be doubtful, on fair construction, the common law continues to prevail. If it was the purpose of section 1764 to revolutionize the whole equity' procedure in proof taking, it seems easy to have said so in unmistakable terms. If»it meant to do this, there was no sort of necessity for the first clause of the section. But if the first clause was designed to mean something, then, on the settled doctrine of construction: “noscitur a sociis ” the words “in all eases” in the second clause must be referred to the matters detailed in the first. This would result in applying the general equity practice of taking depositions even to those matters, unless, as to them, notice be filed.

Neither Cox v. Kyle, 75 Miss., 667, 23 South., 518, nor Grego v. Grego, 78 Miss., 443, 28 South., 817, commits this court on the question now before us. Section 1764 is restrictive, and not enlarging. Our conclusion gives meaning to the words in the. last two lines of the section, “but this shall not change the rule as to . . . . cases' in which depositions generally are authorized,” which otherwise are utterly useless. No rule of interpretation admits of treating the first clause as if it were an independent section, and as meaning, regardless of the second clause, that, in matters it enumerates, oral proof may be taken without notice. It does not say so, and, if it meant so, manifestly the opening words of the second clause, instead of being “in all cases,”' would have at least been “in all other eases.” The two clauses must be construed together. The two make the section.

While this case is reversed, we do not feel that we should enter decree here for appellant on this mistake as to practice, and so we reverse and remand, with ninety days, after mandate filed below, to the parties to take proof.

Reversed and remanded.